Amicus Curiae Brief — Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, et al., Applicants v. League of Women Voters of Pennsylvania, et al.

Supreme Court briefMar 5, 2018

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No. 17A909

In the Supreme Court of the United States

___________________________________________

MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF

REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS

PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,

Applicants,

v.

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Judgment of

the Supreme Court of Pennsylvania

___________________________________________

To the Honorable Samuel A. Alito, Jr.,

Associate Justice of the United States and

Circuit Justice for the Third Circuit

___________________________________________

MOTION FOR LEAVE TO FILE AMICUS BRIEF, MOTION FOR

LEAVE TO FILE BRIEF ON 8 1/2 BY 11 INCH PAPER, AMICUS

CURIAE BRIEF OF EAGLE FORUM EDUCATION & LEGAL

DEFENSE FUND IN SUPPORT OF APPLICANTS

___________________________________________

LAWRENCE J. JOSEPH

1250 Connecticut Ave. NW, Suite 200

Washington, DC 20036

(202) 355-9452

lj@larryjoseph.com

Counsel for Movant and Amicus Curiae

TABLE OF CONTENTS

Table of Contents ............................................................................................................ i

Table of Authorities ....................................................................................................... ii

Motion for Leave to File Amicus Brief .......................................................................... 1

Identity and Interests of Movant .................................................................................. 2

Reasons to Grant Leave to File ..................................................................................... 2

Motion for Leave to File on 8 1/2 by 11 Inch Format ................................................... 4

Amicus Curiae Brief in Support of Applicants ............................................................. 6

Introduction ................................................................................................................... 7

Standard of Review ...................................................................................................... 10

Summary of Argument ................................................................................................ 11

Argument ..................................................................................................................... 12

I.

The grant of a writ of certiorari is likely. ......................................................... 12

II.

The Legislators are likely to prevail. ............................................................... 12

A.

Both this Court and the Circuit Justice have the

jurisdiction to act, notwithstanding the Pennsylvania

Supreme Court’s effort to mask this as a purely state-law

question................................................................................................... 13

1.

The Elections Clause is implicated. ............................................ 13

2.

The Due Process Clause is implicated. ....................................... 14

3.

The All Writs Act gives this Court jurisdiction now

to preserve its future jurisdiction over the

Legislators’ petition for a writ of certiorari. ............................... 14

4.

28 U.S.C. §2106 gives this Court further authority

to remedy the situation that the Pennsylvania

Supreme Court has created. ........................................................ 17

B.

The Legislators are likely to prevail on the merits. .............................. 18

1.

The Pennsylvania Supreme Court violated the

Elections Clause. ......................................................................... 18

2.

The Pennsylvania Supreme Court violated the Due

Process Clause. ............................................................................ 19

III.

The other stay criteria tip in the legislators’ favor. ......................................... 22

A.

The Legislators’ harm is irreparable. .................................................... 22

B.

The equities balance in favor of the Legislators. .................................. 23

C.

The public interest favors a stay. .......................................................... 24

Conclusion .................................................................................................................... 24

i

TABLE OF AUTHORITIES

CASES

Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33 (1980) .......................................................................................... 16, 24

Arizona State Leg. v. Ariz. Indep. Redistricting Comm’n,

135 S.Ct. 2652 (2015) ........................................................................................... 12

Bell v. Hood,

327 U.S. 678 (1946) ......................................................................................... 13-14

Burford v. Sun Oil Co.,

319 U.S. 315 (1943) .............................................................................................. 24

Cheney v. United States Dist. Court,

542 U.S. 367 (2004) .............................................................................................. 16

City of Boerne v. Flores,

521 U.S. 507 (1997) .............................................................................................. 21

Commonwealth v. Gilmour Mfg. Co.,

573 Pa. 143, 822 A.2d 676 (Pa. 2003) .................................................................... 8

Corley v. U.S.,

556 U.S. 303 (2009) .............................................................................................. 20

Diamond v. Charles,

476 U.S. 54 (1986) ................................................................................................ 23

Dreyer v. People of State of Illinois,

187 U.S. 71 (1902) ................................................................................................ 14

Edwards v. Hope Med. Group for Women,

512 U.S. 1301 (1994) ............................................................................................ 10

Erfer v. Commonwealth,

568 Pa. 128, 794 A.2d 325 (Pa. 2002) .................................................................... 7

Frank v. Walker,

135 S.Ct. 7 (2014) ................................................................................................... 9

FTC v. Dean Foods Co.,

384 U.S. 597 (1966) ........................................................................................ 15, 17

Gill v. Whitford,

No. 16-1161 (U.S.) ........................................................................................... 11-12

Graddick v. Newman,

453 U.S. 928 (1981) .............................................................................................. 22

Hollingsworth v. Perry,

558 U.S. 183 (2010) ........................................................................................ 10, 18

ii

Holt v. 2011 Legislative Reapportionment Comm’n,

620 Pa. 373, 67 A.3d 1211 (Pa. 2013) .................................................................... 7

Husted v. Ohio State Conf. of the NAACP,

135 S.Ct. 42 (2014) ................................................................................................. 9

Karcher v. May,

484 U.S. 72 (1987) ................................................................................................ 23

Kimble v. Swackhamer,

439 U.S. 1385 (1978) ............................................................................................ 10

Knowlton v. Moore,

178 U.S. 41 (1900) ................................................................................................ 19

La Buy v. Howes Leather Co.,

352 U.S. 249 (1957) .............................................................................................. 16

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .............................................................................................. 20

Mathews v. Eldridge,

424 U.S. 319 (1976) ........................................................................................ 14, 20

Mathews v. Weber,

423 U.S. 261 (1976) .............................................................................................. 16

Mistretta v. U.S.,

488 U.S. 361 (1989) .............................................................................................. 20

Nelson v. Adams USA, Inc.,

529 U.S. 460 (2000) ......................................................................................... 20-21

Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826 (1989) .............................................................................................. 17

North Carolina v. League of Women Voters,

135 S.Ct. 6 (2014) ................................................................................................... 9

Pa. Prison Soc’y v. Commonwealth,

727 A.2d 632 (Pa. Commw. Ct. 1999) .................................................................. 21

Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118 (1912) .............................................................................................. 22

Purcell v. Gonzalez,

549 U.S. 1 (2006) .................................................................................................... 9

Rendell v. Pa. State Ethics Comm’n,

603 Pa. 292, 983 A.2d 708 (Pa. 2009) .................................................................... 7

Sampson v. Murray,

415 U.S. 61 (1974) ........................................................................................... 15-16

iii

Schlesinger v. Councilman,

420 U.S. 738 (1975) .............................................................................................. 17

Securities Industry Ass’n v. Bd. of Governors of Fed’l Reserve Sys.,

468 U.S. 137 (1984) .............................................................................................. 19

Sochor v. Florida,

504 U.S. 527 (1992) .............................................................................................. 17

Steel Co. v. Citizens for a Better Env’t.,

523 U.S. 83 (1998) ................................................................................................ 13

U.S. v. Munoz-Flores,

495 U.S. 385 (1990) .............................................................................................. 20

U.S. v. Williams,

504 U.S. 36 (1992) ................................................................................................ 13

Ullmann v. U.S.,

350 U.S. 422 (1956) .............................................................................................. 21

Washington v. Glucksberg,

521 U.S. 702 (1997) .............................................................................................. 22

Whalen v. U.S.,

445 U.S. 684 (1980) .............................................................................................. 14

Will v. U.S.,

389 U.S. 90 (1967) ................................................................................................ 16

STATUTES

U.S. CONST. art. I, §4, cl. 1............................................................ 9, 11-14, 18-20, 22-24

U.S. CONST. art. IV, §4, cl. 1 .................................................................................. 19, 22

U.S. CONST. art. V ........................................................................................................ 21

U.S. CONST. amend. XIV, §1, cl. 3 ........................................................ 11, 14, 18-19, 22

All Writs Act,

28 U.S.C. §1651(a)............................................................................. 10-11, 14-17

28 U.S.C. §1653 ............................................................................................................ 17

28 U.S.C. §2106 ................................................................................................. 11, 17-18

PA. CONST. art. I, §5, cl. 1 .............................................................................................. 7

PA. CONST. art. III, §4 .............................................................................................. 9, 20

PA. CONST. art. VII, §9 ................................................................................................... 7

PA. CONST. art. XI, §1 .................................................................................................. 21

iv

OTHER AUTHORITIES

Terence Ball, “A Republic - If You Can Keep It”, in CONCEPTUAL CHANGE

AND THE CONSTITUTION 35, 137 (Terence Ball & J.G.A. Pocock eds.,

1988) .................................................................................................................. 19

Sandra Day O’Connor, Symposium: The 2009 Earl F. Nelson Lecture:

The Essentials and Expendables of the Missouri Plan, 74 MO. L.

REV. 479 (2009) .............................................................................................. 9-10

11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,

FED. PRAC. & PROC. Civ.2d §2948.4 (2d ed. 1995 & Supp.) ............................. 24

v

No. 17A909

In the Supreme Court of the United States

___________________________________________

MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF

REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS

PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,

Applicants,

v.

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Judgment of

the Supreme Court of Pennsylvania

___________________________________________

MOTION FOR LEAVE TO FILE AMICUS BRIEF

Movant Eagle Forum Education & Legal Defense Fund respectfully requests

leave to file the accompanying brief as amicus curiae in support of the application to

stay the decision and remedy of the Pennsylvania Supreme Court in the abovecaptioned matter.* Of the various parties involved, the applicants consented to the

filing of the brief, and the defendants, the original petitioners – i.e., the League of

Women Voters of Pennsylvania and the allied 18 voters – and the state intervenors

Brian McCann et al. do not oppose the filing of the brief.

*

By analogy to FED. R. APP. P. 29(c)(5) and this Court’s Rule 37.6, counsel for

movant and amicus curiae authored these motions and brief in whole, and no counsel

for a party authored the motions and brief in whole or in part, nor did any person or

entity, other than the movant/amicus and its counsel make a monetary contribution

to preparation or submission of the motions and brief.

1

IDENTITY AND INTERESTS OF MOVANT

Eagle Forum Education & Legal Defense Fund (“EFELDF”) is a nonprofit

corporation founded in 1981 and headquartered in Saint Louis, Missouri. For more

than thirty-five years, EFELDF has consistently defended the Constitution’s

federalist structure and the separation of powers. In the context of the integrity of

the elections on which the Nation has based its political community, EFELDF has

supported efforts both to ensure equality of voters consistent with the written

Constitution and validly enacted laws. For the foregoing reasons, movant EFELDF

has direct and vital interests in the issues before this Court and respectfully requests

leave to file the accompanying amicus brief in support of the stay applicants.

REASONS TO GRANT LEAVE TO FILE

By analogy to Rule 37.2(b) of the Rules of the Supreme Court, movant

respectfully seeks leave to file the accompanying amici curiae brief in support of the

stay applicants. By filing this motion contemporaneously with the respondents’

deadline to file an opposition, this filing should not disturb the accelerated briefing

schedule ordered in this matter.

Movant EFELDF respectfully submits that the proffered amicus brief will

bring two categories of relevant matters to the Court’s attention:

First, the EFELDF brief discusses the All Writs Act, 28 U.S.C. §1651(a), as

well as 28 U.S.C. §2106, which aid this Court’s jurisdiction to apply a stay and

remedial power not only to issue a stay but also to remedy the eventual merits.

See EFELDF Br. at 11, 14-18.

2

Second, the EFELDF brief addresses the Due Process Clause as a federal basis

for this Court to hear the merits of this action, in addition to the federal issues

presented by the Elections Clause. See EFELDF Br. at 14, 19-22.

These issues are all relevant to deciding the stay application, and movant EFELDF

respectfully submits that filing the brief will aid the Court.

Dated: March 5, 2018

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Lawrence J. Joseph

1250 Connecticut Av NW Suite 200

Washington, DC 20036

Telephone: (202) 355-9452

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Movant Eagle Forum

Education & Legal Defense Fund

3

No. 17A909

In the Supreme Court of the United States

___________________________________________

MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF

REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS

PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,

Applicants,

v.

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Judgment of

the Supreme Court of Pennsylvania

___________________________________________

MOTION FOR LEAVE TO FILE ON 8 1/2 BY 11 INCH FORMAT

Eagle Forum Education & Legal Defense Fund (“EFELDF”) respectfully

submits that the Court’s rules require those moving or applying to a single Justice to

file in 8½-by 11-inch format pursuant to Rule 22.2, as EFELDF has done here. If Rule

21.2(b)’s requirements for motions to the Court for leave to file an amicus brief

applied here, however, EFELDF would need to file 40 copies in booklet format, even

though the Circuit Justice may not refer this matter to the full Court. Due to the

expedited briefing schedule, the expense and especially the delay of booklet-format

printing, and the rules’ ambiguity on the appropriate procedure, EFELDF has elected

to file pursuant to Rule 22.2. To address the possibility that the Circuit Justice may

refer this matter to the full Court, however, movant files an original plus ten copies,

rather than Rule 22.2’s required original plus two copies.

Should the Clerk’s Office, the Circuit Justice, or the Court so require, EFELDF

4

commits to re-filing expeditiously in booklet format. See S.Ct. Rule 21.2(c) (Court may

direct the re-filing of documents in booklet-format). Movant EFELDF respectfully

requests leave to file the accompanying brief as amicus curiae to the Pennsylvania

legislative leaders’ stay application – at least initially – in 8½-by 11-inch format

pursuant to Rules 22 and 33.2, rather than booklet format pursuant to Rule 21.2(b)

and 33.1.

For the foregoing reasons, the motion for leave to file in 8½-by 11-inch format

should be granted.

Dated: March 5, 2018

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Lawrence J. Joseph

1250 Connecticut Av NW Suite 200

Washington, DC 20036

Telephone: (202) 355-9452

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Movant Eagle Forum

Education & Legal Defense Fund

5

No. 17A909

In the Supreme Court of the United States

___________________________________________

MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF

REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS

PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,

Applicants,

v.

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Judgment of

the Supreme Court of Pennsylvania

___________________________________________

AMICUS CURIAE BRIEF IN SUPPORT OF APPLICANTS

Amicus Curiae Eagle Forum Education & Legal Defense Fund (“EFELDF”)

respectfully submits that the Circuit Justice (or the full Court if referred to the full

Court) should stay the decision and remedial orders of the Pennsylvania Supreme

Court in this action until the applicants here – the leaders of Pennsylvania’s House

of Representative and its Senate (collectively, hereinafter the “Legislators”) – timely

file and this Court duly resolves a petition for a writ of certiorari. Amicus EFELDF’s

interests are set out in the accompanying motion for leave to file.

6

INTRODUCTION

Although this litigation began as a traditional case or controversy,1 it became

a legislative vehicle for a partisan majority of the Pennsylvania Supreme Court to

enact a new law out of generally worded language – “Elections shall be free and

equal,” PA. CONST. art. I, §5, cl. 1 – in the Pennsylvania Constitution. The new law is

that “congressional districts composed of compact and contiguous territory; as nearly

equal in population as practicable; and which do not divide any county, city,

incorporated town, borough, township, or ward, except where necessary to ensure

equality of population.” Order, at 3 (Jan. 22, 2018) (App. A., at 3). Significantly, the

constitutional basis for the new law – PA. CONST. art. I, §5, cl. 1 – is not new, and that

same language was in the same constitution when that same court repeatedly held

that it does not mean what – hey, presto! – it now means. See, e.g., Erfer v.

Commonwealth, 568 Pa. 128, 142 n.4, 794 A.2d 325, 334 n.4 (Pa. 2002); Holt v. 2011

Legislative Reapportionment Comm’n, 620 Pa. 373, 412, 67 A.3d 1211, 1235 (Pa.

2013). But it gets worse.

Investing the new criteria into the free-and-equal clause renders another

provision of the same constitution mere surplusage, see PA. CONST. art. VII, §9

(expressly setting same criteria for state legislative districts), which normally would

suggest that the new interpretation is wrong: “[A] bedrock principle of statutory

1

Pennsylvania has its own state-law equivalent of the federal Article III caseor-controversy requirement. See Rendell v. Pa. State Ethics Comm’n, 603 Pa. 292,

307-08, 983 A.2d 708, 717-18 (Pa. 2009).

7

construction requires that a statute be construed, if possible, to give effect to all its

provisions, so that no provision is mere surplusage.” Commonwealth v. Gilmour Mfg.

Co., 573 Pa. 143, 149, 822 A.2d 676, 679 (Pa. 2003) (interior quotations omitted,

emphasis added). But it get worse.

Although the order dated January 22, 2018, announced some new standards

for congressional maps and “as a matter of law that the Congressional Redistricting

Act of 2011 clearly, plainly and palpably violates the Constitution of the

Commonwealth of Pennsylvania,” Order, at 2 (Jan. 22, 2018) (App. A., at 2), the order

did not identify the basis for its conclusions: “Opinion to follow.” Id. at 3 (App. A., at

3). Although the U.S. Constitution assigns map-drawing to state legislatures, U.S.

CONST. art. I, §4, the order was at best indifferent as to whether Pennsylvania’s

legislature cured the ill-described constitutional failing(s): “should the Pennsylvania

General Assembly choose to submit a congressional districting plan that satisfies the

requirements of the Pennsylvania Constitution, it shall submit such plan for

consideration by the Governor on or before February 9, 2018.” Order, at 2 (Jan. 22,

2018) (App. A., at 2) (emphasis in original). In other words, the state-court majority

gave Pennsylvania’s legislature just 18 days to complete a significant legislative task

that normally takes months of analysis and negotiation. But it get worse.

On February 7, 2018 – just two days before its already tight deadline – the

court issued an extensive opinion adding new criteria (e.g., efficiency gaps,

proportional representation) and finally identifying the mystery source of the

“palpable violations.” Under Pennsylvania’s constitution, “[e]very bill shall be

8

considered on three different days in each House,” PA. CONST. art. III, §4 (emphasis

added), which means that six days is the barest minimum number of days needed to

pass a bill, assuming improbably that the originating house could write and publish

a bill on the first day. In sum, the state-court majority made it literally impossible for

Pennsylvania’s legislature to meet its obligation under the Elections Clause of the

U.S. Constitution.

The solution here is easy: stay the Pennsylvania Supreme Court’s decision and

orders, pending the Legislators’ timely petition for a writ of certiorari and this Court’s

resolution of that appeal. When such late-breaking election-law rulings surface near

an election – Pennsylvania’s congressional primaries are in May – this Court has not

hesitated to issue stays,2 presumably to avoid electoral chaos and voter confusion.

Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (“Court orders affecting elections … can

result in voter confusion and consequent incentive to remain away from the polls”).

Amicus EFELDF respectfully submits that the Court must again do so here.

The stakes could not be higher for our system of government: If the electorate

believes that “judges are just politicians in robes – then there is no reason to prefer

their interpretation of the law or Constitution over the opinions of the real politicians

representing the electorate.” Sandra Day O’Connor, Symposium: The 2009 Earl F.

Nelson Lecture: The Essentials and Expendables of the Missouri Plan, 74 MO. L. REV.

2

See, e.g., Frank v. Walker, 135 S.Ct. 7 (2014); Husted v. Ohio State Conf. of the

NAACP, 135 S.Ct. 42 (2014); North Carolina v. League of Women Voters, 135 S.Ct. 6

(2014).

9

479, 489 (2009). If it does not plug this Pennsylvania leak immediately, this Court

will face a deluge of similar actions from all points of the geographic and political

compass, coupled with a massive wave of public cynicism toward government.

STANDARD OF REVIEW

A stay pending the timely filing and ultimate resolution of a petition for a writ

of certiorari is appropriate when there is a “(1) a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair

prospect that a majority of the Court will vote to reverse the judgment below; and (3)

a likelihood that irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). For “close cases,” the Court “will

balance the equities and weigh the relative harms to the applicant and to the

respondent.” Id.

Where the All Writs Act, 28 U.S.C. §1651(a) is implicated, the Court also

considers the necessity or appropriateness of interim relief now to aid the Court’s

future jurisdiction. See Edwards v. Hope Med. Group for Women, 512 U.S. 1301 (1994)

(requiring “reasonable probability that certiorari will be granted,” a “significant

possibility” of reversal, and a “likelihood of irreparable harm”) (Scalia, J., in

chambers). Although “a single Circuit Justice has no authority to summarily reverse

a judgment of the highest court of a State,” he or she can “grant interim relief in order

to preserve the jurisdiction of the full Court to consider an applicant’s claim on the

merits.” Kimble v. Swackhamer, 439 U.S. 1385 (1978) (Rehnquist, J., in chambers)

(interior quotations omitted).

10

SUMMARY OF ARGUMENT

With respect to the likelihood of this Court’s granting a writ of certiorari, the

Court’s resolution of the partisan-gerrymandering issue in Gill v. Whitford, No. 161161, may require it; in any event, this Court has often reviewed Elections Clause

cases that go to which state actors have authority to act as the legislature (Section I).

Notwithstanding the Pennsylvania Supreme Court’s purportedly ruling on a statelaw ground, this Court has jurisdiction because both the procedure and the substance

of the state court’s ruling violate not only the Elections Clause (Section II.A.1) but

also the Due Process Clause (Section II.A.2), which of course fall within this Court’s

jurisdiction. Moreover, the All Writs Act, 28 U.S.C. §1651(a) provides a supplemental

basis for jurisdiction and relief (Section II.A.3), as does 28 U.S.C. §2106 (Section

II.A.4).

As to the merits, the Legislators are likely to prevail because the Pennsylvania

Supreme Court usurped the legislature’s authority under the Elections Clause

(Section II.B.1) and violated procedural and substantive due process in doing so

(Section II.B.2). The other stay factors also favor the Legislators because the

irreparable harm – namely, chaos and voter confusion in the 2018 elections and the

resulting changes in congressional offices and staff – will not be fixable if the elections

proceed under the state court’s map and this Court later reverses (Section III.A. The

other stay factors merge with the merits, which – as indicated – tip to the Legislators

(Sections III.B-III.C).

11

ARGUMENT

I.

THE GRANT OF A WRIT OF CERTIORARI IS LIKELY.

There is a reasonable possibility that this Court will grant the Legislators’

forthcoming petition for a writ of certiorari. Perhaps most obviously, depending on

how the Court resolves the issue of partisan gerrymandering in Gill v. Whitford, No.

16-1161 – which seemed a “toss-up” at oral argument – it is easy to envision a grant,

if only to be followed by an immediate vacatur and remand for further consideration

in light of Gill. But even if partisan gerrymanders remain non-justiciable, this Court

is likely to grant the writ to consider the issue of whether the Pennsylvania Supreme

Court’s actions here run afoul of the Elections Clause’s delegation to the “Legislature”

of a state, U.S. CONST. art. I, §4, as this Court recently did with respect to independent

commissions. Arizona State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S.Ct. 2652

(2015). Accordingly, the Legislators meet the first criterion for a stay.

II.

THE LEGISLATORS ARE LIKELY TO PREVAIL.

This section demonstrates that the Legislators are likely to prevail on the

merits. To make that showing, amicus EFELDF first shows that the Legislators’

petition will present a federal question, notwithstanding the state-court majority’s

transparent effort to insulate their ruling from review by claiming to have relied on

the “sole basis” of the Pennsylvania Constitution. Order, at 2 (Jan. 22, 2018) (App.

A., at 2). After establishing this Court’s jurisdiction to act, amicus EFELDF then

shows why the Legislators are likely to prevail on the federal merits presented here.

12

A.

Both this Court and the Circuit Justice have the jurisdiction to

act, notwithstanding the Pennsylvania Supreme Court’s effort

to mask this as a purely state-law question.

Before reaching the question of the Legislators’ likelihood of prevailing on the

merits, this Court – or the Circuit Justice – first must establish federal jurisdiction.

Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 95 (1998). But this Court considers

issues either pressed or passed upon in the lower court, U.S. v. Williams, 504 U.S.

36, 41 (1992), and a state-court majority cannot avoid a federal question by ignoring

it. While it is true that this Court would lack authority to review issues solely based

on state-law issues, that does not prevent review when those state-law issues or the

processes through which they were reached violate federal law.

1.

The Elections Clause is implicated.

The Legislators’ application and the Thornburg-McCollum amicus brief make

clear that this case presents an issue under the Elections Clause, even though the

state-court majority attempts to evade that issue by ignoring it and offering a purely

state-law basis for its holding. At a minimum, the issue was pressed below, and that

is all that this Court requires. Williams, 504 U.S. at 41. Although amicus EFELDF

will argue that the Legislators are likely to prevail, see Section II.B, infra, parties do

not need winning hands for the Court to have jurisdiction. Instead, jurisdiction exists

when “the right of the petitioners to recover under their complaint will be sustained

if the Constitution and laws of the United States are given one construction,” even if

the right “will be defeated if they are given another.” Bell v. Hood, 327 U.S. 678, 685

(1946). At least as to jurisdiction, the Legislators need only survive the low threshold

“where the alleged claim under the Constitution or federal statutes clearly appears

13

to be immaterial and made solely for the purpose of obtaining jurisdiction or where

such a claim is wholly insubstantial and frivolous.” Id. at 682. The Legislators

plausibly allege that the Pennsylvania Supreme Court violated the Elections Clause,

which is enough for jurisdictional purposes.

2.

The Due Process Clause is implicated.

In addition to the Elections Clause, amicus EFELDF respectfully submits that

the Due Process Clause also provides a federal basis for this Court’s reviewing the

state-court decision, notwithstanding the state-law basis for the ultimate holding.

The Due Process Clause prohibits inter alia the denial of liberty without due process

of law. While the “doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States,” Whalen v. U.S., 445 U.S. 684, 689 (1980);

accord Dreyer v. People of State of Illinois, 187 U.S. 71, 84 (1902), the states still must

run their judicial proceedings in compliance with the Due Process Clause: “nor shall

any state deprive any person of life, liberty, or property, without due process of law.”

U.S. CONST. amend. XIV, §1, cl. 3. “The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in a meaningful manner,”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976), and that was sorely lacking here.

3.

The All Writs Act gives this Court jurisdiction now to

preserve its future jurisdiction over the Legislators’

petition for a writ of certiorari.

The All Writs Act provides an alternate, supplemental form of jurisdiction to

stay the Pennsylvania Supreme Court’s action here, if only to preserve the full range

of the controversy now for this Court’s consideration upon the Legislators’ future

appeal to this Court:

14

The All Writs Act empowers the federal courts to issue all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law. The exercise of this power is in the nature of appellate

jurisdiction where directed to an inferior court, and extends

to the potential jurisdiction of the appellate court where an

appeal is not then pending but may be later perfected.

FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (interior quotations and citations

omitted, emphasis added) (citing Ex parte Crane, 5 Pet. 190, 193 (1832) (Marshall,

C.J.); Ex parte Bradstreet, 7 Pet. 634 (1833) (Marshall, C.J.)). Although this Court’s

jurisdiction to provide interim relief does not require resort to the All Writs Act, that

Act nonetheless ensures the Court’s jurisdiction here. The All Writs Act provides “a

limited judicial power to preserve the court’s jurisdiction or maintain the status quo

by injunction pending review of an agency’s action through the prescribed statutory

channels,” and that “power has been deemed merely incidental to the courts’

jurisdiction to review” the ultimate merits of the future appeal. Id. at 604 (alterations

omitted). As explained in this section, that power is appropriate in this case.

Without a stay, the congressional offices that exist under the bipartisan 2011

map will certainly be dispersed and perhaps lost outright if the Pennsylvania

Supreme Court succeeds in pushing through its rival map for the May 2018

primaries. That is the type of harm that justifies action under the All Writs Act. For

example, in Sampson v. Murray, 415 U.S. 61, 76-77 (1974), the Court was concerned

“that refusal to grant the injunction would result in the practical disappearance of

one of the entities whose merger the [applicant] sought to challenge” and that “[t]he

disappearance, in turn, would mean that the [applicant] and the court entrusted …

to review the … decision, would be incapable of … fashioning effective relief.” Under

15

the circumstances, “invocation of the All Writs Act, as a preservative of jurisdiction,

was considered appropriate,” id., which applies equally here as in Sampson.

In another instance where the Court’s invoking the All Writs Act shares

themes at issue here, La Buy v. Howes Leather Co., 352 U.S. 249, 259 (1957), refused

to permit reference of antitrust cases to a master. “In La Buy, the District Judge on

his own motion referred to a special master two complex, protracted antitrust cases

on the eve of trial. … The master, a member of the bar, was to hear and decide the

entire case, subject to review by the District Judge under the ‘clearly erroneous’ test.”

Mathews v. Weber, 423 U.S. 261, 274 (1976). Assuming arguendo that the state court’s

expert here was not – in fact – doing the court majority’s political bidding – this would

case would repeat aspects of La Buy that justified resort to the All Writs Act.

Although resort to the All Writs Act is an extraordinary remedy – as indeed is

any stay – the writ “has traditionally been used in the federal courts only to confine

an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to

exercise its authority when it is its duty to do so.” Will v. U.S., 389 U.S. 90, 95 (1967)

(interior quotations omitted). While “only exceptional circumstances … will justify

the invocation of this extraordinary remedy,” those circumstances certainly include a

“judicial usurpation of power” as happened here. Id. (interior quotations omitted);

accord Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); Cheney v. United

States Dist. Court, 542 U.S. 367, 380 (2004). For partisan ends, a partisan majority

of elected judges on a state supreme court have attempted to seize the Legislature’s

constitutional power, which easily meets the “judicial usurpation of power” test that

16

this Court has repeatedly set.

While the All Writs Act perhaps may seem too obvious to mention, amicus

EFELDF respectfully submits that it bears explicit emphasis3 because it can provide

the difference in a close case: “where a case is within the appellate jurisdiction of the

higher court a writ may issue in aid of the appellate jurisdiction which might

otherwise be defeated.” Dean Foods, 384 U.S. at 604. Accordingly, amicus EFELDF

respectfully submits that the Circuit Justice or the full Court should consider the

appropriateness of relief to preserve the full controversy for review.

4.

28 U.S.C. §2106 gives this Court further authority to

remedy the situation that the Pennsylvania Supreme

Court has created.

In addition to the All Writs Act, this Court also can rely on §2106 for additional

authority to resolve this matter:

The Supreme Court or any other court of appellate

jurisdiction may affirm, modify, vacate, set aside or reverse

any judgment, decree, or order of a court lawfully brought

before it for review, and may remand the cause and direct

the entry of such appropriate judgment, decree, or order, or

require such further proceedings to be had as may be just

under the circumstances.

3

It is irrelevant that the Legislators did not cite the All Writs Act in their stay

application. First, if “jurisdiction … actually exists,” plaintiffs – or, here, applicants –

can cite that jurisdiction for the first time on appeal. Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 831 (1989); 28 U.S.C. §1653. Second, subject-matter

jurisdiction does not require specific citations where the “facts alleged and the claim

asserted … were sufficient to demonstrate [jurisdiction’s] existence.” Schlesinger v.

Councilman, 420 U.S. 738, 745 (1975). Third, failure to raise jurisdictional arguments

does not waive those arguments. Sochor v. Florida, 504 U.S. 527, 534 n.* (1992) (“this

defense goes to our jurisdiction and therefore cannot be waived”). Certainly, they can

cite the All Writs Act in their reply.

17

28 U.S.C. §2106. As §2106 makes clear, this Court can not only alter the judgment

from the lower court but also require further proceedings. Indeed, given the questions

about the partisanship of the Pennsylvania Supreme Court majority and their expert,

this Court could even assign a special master to work with the General Assembly to

resolve any state-law issues, assuming that any state-law issues remained after this

Court’s review of the federal issues.

B. The Legislators are likely to prevail on the merits.

In order to warrant a stay, there must be a “fair prospect” of the Legislators’

prevailing. Hollingsworth, 558 U.S. at 190. As explained in the next two sections, the

Legislators likely will prevail under both the Elections Clause and the Due Process

Clause.

1.

The Pennsylvania Supreme Court violated the Elections

Clause.

Even accepting that the Pennsylvania Supreme Court correctly interpreted

that state’s constitution, the remedy that the state court imposed usurped the power

that the Elections Clause gives to the General Assembly. See Appl. 14-22; ThornburgMcCollum Amicus Br. at 8-10. On the subject of a court’s needing to usurp legislative

power to remedy a case or controversy properly before the court, this Court has taken

a jaundiced, wait-and-see view:

The grave consequences which it is asserted must arise in

the future if the right to levy a progressive tax be

recognized involves in its ultimate aspect the mere

assertion that free and representative government is a

failure, and that the grossest abuses of power are

foreshadowed unless the courts usurp a purely legislative

function. If a case should ever arise, where an arbitrary

and confiscatory exaction is imposed bearing the guise of a

18

progressive or any other form of tax, it will be time enough

to consider whether the judicial power can afford a remedy

by applying inherent and fundamental principles for the

protection of the individual, even though there be no

express authority in the Constitution to do so. That the law

which we have construed affords no ground for the

contention that the tax imposed is arbitrary and

confiscatory, is obvious.

Knowlton v. Moore, 178 U.S. 41, 109-10 (1900). As with the tax in Knowlton, the

congressional map here is not so egregiously out of the norm to justify a judicial

remedy egregiously out of the norm.

With statutes, this Court has readily recognized the judiciary’s role as arbiter,

not author, of our laws: “it is not this Court’s function to sit as a super-legislature and

create statutory distinctions where none were intended.” Securities Industry Ass’n v.

Bd. of Governors of Fed’l Reserve Sys., 468 U.S. 137, 153 (1984) (interior quotations

omitted). The same is true in Pennsylvania, as it would have to be true under our

Constitution. U.S. CONST. art. IV, §4, cl. 1. When asked what form of government the

Framers had given us, Benjamin Franklin reportedly replied “A republic … if you can

keep it.” Terence Ball, “A Republic - If You Can Keep It”, in CONCEPTUAL CHANGE AND

THE CONSTITUTION 35, 137 (Terence Ball & J.G.A. Pocock eds., 1988). It now – once

again – falls to the Circuit Justice or the full Court to endeavor to keep the republic.

Amicus EFELDF respectfully submits that these considerations weigh in favor

of this Court’s rejecting the state court’s usurpation of the state legislature’s power

under the Elections Clause.

2.

The Pennsylvania Supreme Court violated the Due

Process Clause.

The Due Process Clause has not only procedural aspects, but also substantive

19

aspects. The Pennsylvania Supreme Court’s decision fell afoul of both aspects.

Procedurally, the Pennsylvania Supreme Court announced its full verdict on

February 7, 2018, just two days before its deadline to cure the purported defects of

the 2011 map, when it was literally impossible for the General Assembly to respond.

PA. CONST. art. III, §4 (requiring consideration of bills for three days in each house).

On the other hand, if the Pennsylvania Supreme Court wanted to claim that the court

had met its full obligations in its order dated January 22, 2018, that order was

insufficient to alert the General Assembly of the legislature’s purported obligations

under the state court’s brand new interpretation – then without citation, even – of

the Pennsylvania Constitution. Both alternatives fail due process by denying the

General Assembly an “opportunity to be heard at a meaningful time and in a

meaningful manner,” Mathews, 424 U.S. at 333, on an issue – namely, creating a new,

compliant map – that is the exclusive purview of the legislature under the Elections

Clause.

Significantly, our constitutional structure and heritage of divided power and

dual federal-state sovereignty protects liberty. Mistretta v. U.S., 488 U.S. 361, 380

(1989); U.S. v. Munoz-Flores, 495 U.S. 385, 394-96 (1990). Indeed, the “history of

liberty has largely been the history of observance of procedural safeguards” Corley v.

U.S., 556 U.S. 303, 321 (2009) (interior quotations omitted), and thus “‘procedural

rights’ are special.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992) (interior quotations omitted). As this Court has explained, “Procedure of this style has been

questioned even in systems, real and imaginary, less concerned than ours with the

20

right to due process,” Nelson v. Adams USA, Inc., 529 U.S. 460, 468 (2000):

“‘Herald, read the accusation!’ said the King.

On this the White Rabbit blew three blasts on the trumpet,

and then unrolled the parchment scroll, and read as

follows:

‘The Queen of Hearts, she made some tarts, All on a summer

day: The Knave of Hearts, he stole those tarts,

And took them quite away!’

‘Consider your verdict,’ the King said to the jury.

‘Not yet, not yet!’ the Rabbit interrupted. ‘There’s a great

deal to come before that!’”

Id. n.2 (quoting LEWIS CARROLL, ALICE IN WONDERLAND AND THROUGH THE LOOKING

GLASS 108 (Messner, 1982) (emphasis in THROUGH THE LOOKING GLASS). Amicus

EFELDF submits that, here too, the process requires a great deal more.

The Pennsylvania Supreme Court does not fare better under substantive due

process. While the “power to interpret the Constitution … remains in the Judiciary,”

City of Boerne v. Flores, 521 U.S. 507, 524 (1997), the power to amend the

Constitution remains with the states. U.S. CONST. art. V; PA. CONST. art. XI, §1.

“Nothing new can be put into the Constitution except through the amendatory

process. Nothing old can be taken out without the same process.” Ullmann v. U.S.,

350 U.S. 422, 428 (1956), which is a principle that applies equally in Pennsylvania.

Pa. Prison Soc’y v. Commonwealth, 727 A.2d 632, 635 (Pa. Commw. Ct. 1999)

(invalidating a constitutional amendment because the process of its adoption violated

another provision of the Pennsylvania Constitution). The federal and state

constitutions are not blank checks with which judges can remake this Nation or a

21

state, wholly apart from the states’ and the People’s intent in ratifying a constitution’s

generally worded provisions. Accordingly, this Court already has recognized the

limits posed on using the generally worded Due Process Clause to legislate beyond

“fundamental rights and liberties which are, objectively, deeply rooted in this

Nation’s history and tradition.” Washington v. Glucksberg, 521 U.S. 702, 720-21

(1997). Amicus EFELDF respectfully submits that this Court should adopt a statelaw version of Glucksberg to pare judicial activism. Although enforcing a republican

form of government under U.S. CONST. art. IV, §4, cl. 1 for all state-court usurpations

may be non-justiciable under Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118

(1912), enforcing the Elections Clause is entirely justiciable.

III.

THE OTHER STAY CRITERIA TIP IN THE LEGISLATORS’ FAVOR.

Although the likelihood of this Court’s granting a writ of certiorari and ruling

for the Legislators on the merits would alone justify granting a stay, amici EFELDF

addresses the three other potential stay factors. All of these factors weigh in favor of

staying the Pennsylvania Supreme Court’s actions until the conclusion of any timely

filed petition for a writ of certiorari.

A.

The Legislators’ harm is irreparable.

For stays, the question of irreparable injury requires a two-part “showing of a

threat of irreparable injury to interests that [the applicant] properly represents.”

Graddick v. Newman, 453 U.S. 928, 933 (1981) (Powell, J., for the Court4). “The first,

4

Although Graddick began as an application to a circuit justice, the Chief

Justice referred the application to the full Court. Graddick, 453 U.S. at 929.

22

embraced by the concept of ‘standing,’ looks to the status of the party to redress the

injury of which he complains.” Id. “The second aspect of the inquiry involves the

nature and severity of the actual or threatened harm alleged by the applicant.” Id.

The Legislators meet both tests.

As to standing, the Legislators have standing not only to defend state law in

the form of the 2011 map, Diamond v. Charles, 476 U.S. 54, 62-63 (1986), but also to

defend the legislative prerogatives under the Elections Clause from encroachment by

the partisan state-court majority. Karcher v. May, 484 U.S. 72, 82 (1987). Moreover,

because they have independent constitutional standing and a close relationship with

the federal legislators that serve Pennsylvania and the Pennsylvania electorate, the

Legislators also can press the harms that will afflict Pennsylvania and its delegations

to Congress.

As to irreparable harm, amicus EFELDF agrees with amici Thornburg and

McCollum that it would be essentially impossible to restore the status quo ante if this

Court allows the state-court map to govern the 2018 primaries and mid-term election

and later reverses the state court. See Thornburg-McCollum Amicus Br. at 13.

Candidates will win or lose, offices will be disbanded and staff will move on. Moreover,

the electoral confusion will be complete with the election, and the stain of illegitimacy

will hang over the election results.

B.

The equities balance in favor of the Legislators.

The third stay criterion is the balance of equities, which tips in the Legislators’

favor because the merits tip in their favor.

23

C.

The public interest favors a stay.

The last stay criterion is the public interest. While the Pennsylvania Supreme

Court majority has injected itself into this litigation as a judicial challenger to state

law, the case began as – and, for stay purposes, remains – litigation by voters against

the state’s electoral map. Where the parties dispute the lawfulness of government

programs, this last criterion collapses into the merits. 11A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. Civ.2d §2948.4. If the

Court sides with the Legislators on the merits, the public interest will tilt decidedly

toward the Legislators: “It is in the public interest that federal courts of equity should

exercise their discretionary power with proper regard for the rightful independence

of state governments in carrying out their domestic policy.” Burford v. Sun Oil Co.,

319 U.S. 315, 318 (1943). As between the Legislators and the original petitioners, the

public-interest factor favors the Legislators.

Using a writ of mandamus can “ha[ve] the unfortunate consequence of making

a district court judge a litigant,” Daiflon, Inc., 449 U.S. at 35, but here it would not

be this Court’s or the Legislators doing: the Pennsylvania Supreme Court majority

made themselves a virtual litigant here all by themselves. As to the judicial attempt

to usurp the General Assembly’s obligations under the Elections Clause, the publicinterest criterion heavily favors the Legislators.

CONCLUSION

This Court should stay the actions of the Pennsylvania Supreme Court in this

litigation, pending the timely filing and resolution of a petition for a writ of certiorari.

24

Dated: March 5, 2018

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Lawrence J. Joseph

1250 Connecticut Av NW Suite 200

Washington, DC 20036

Telephone: (202) 355-9452

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Amicus Curiae Eagle Forum

Education & Legal Defense Fund

25

CERTIFICATE AS TO FORM

Pursuant to Sup. Ct. Rules 22 and 33, I certify that the foregoing motion for

leave to file, motion for leave to file in 8.5-by-11-inch format, and the accompanying

amicus brief are proportionately spaced, have a typeface of Century Schoolbook, 12

points, and contain 3, 2, and 19 pages (and 470, 251, and 5,092 words) respectively,

excluding this Certificate as to Form, the Table of Authorities, the Table of Contents,

and the Certificate of Service.

Dated: March 5, 2018

Respectfully submitted,

/s/ Lawrence J. Joseph

Lawrence J. Joseph, DC Bar #464777

1250 Connecticut Av NW Suite 200

Washington, DC 20036

Telephone: (202) 355-9452

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Movant and Amicus Curiae

CERTIFICATE OF SERVICE

The undersigned certifies that, on this 5th day of March, 2018, in addition to

filing the foregoing document via the Court’s electronic filing system, one true and correct

copy of the foregoing document was served by U.S. Mail, postage pre-paid, with a PDF

copy was served via electronic mail on the following counsel:

Alex Michael Lacey

Cohen & Grigsby, P.C.

625 Liberty Avenue

Pittsburgh, PA 15222

alacey@cohenlaw.com

Clifford B. Levine

Cohen & Grigsby, P.C.

625 Liberty Avenue

Pittsburgh, PA 15222-3152

clevine@cohenlaw.com

Benjamin David Geffen

1709 Benjamin Franklin Parkway,

2nd Floor

Philadelphia, PA 19103

bgeffen@pilcop.org

Alice Birmingham Mitinger

Cohen & Grigsby, P.C.

625 Liberty Avenue

Pittsburgh, PA 15236

amitinger@cohenlaw.com

Carolyn Batz McGee

650 Washington Road, Suite 700

Pittsburgh, PA 15228

Phone: 412-563-2500

cmcgee@c-wlaw.com

Karl Stewart Myers

Stradley Ronon Stevens & Young, LLP

2005 Market Street, Suite 2600

Philadelphia, PA 19103

kmyers@stradley.com

Claudia De Palma

One Logan Square, 27th Floor

Philadelphia, PA 19103

Phone: 215-568-6200

cdp@hangley.com

Kathleen Marie Kotula

Room 306 North Office Building

401 North Street

Harrisburg, PA 17120-0500

kkotula@pa.gov

Jason Raymond McLean

650 Washington Rd. #700

Pittsburgh, PA 15228

jrmclean@c-wlaw.com

Ian Blythe Everhart

306 North Office Building

Harrisburg, PA 17120

ieverhart@pa.gov

Mark Alan Aronchick

One Logan Square, 27th Floor

Philadelphia, PA 19103

maronchick@hangley.com

Kathleen A. Gallagher

650 Washington Road, Suite 700

Pittsburgh, PA 15219

kgallagher@c-wlaw.com

David P. Gersch

Arnold & Porter Kaye Scholer LLP

601 Massachusetts Ave, NW

Washington, DC 20001

david.gersch@apks.com

Russell David Giancola

Cipriani & Werner, PC

650 Washington Road, Suite 700

Pittsburgh, PA 15228

rgiancola@c-wlaw.com

Michael Churchill

1709 Ben Franklin Pkwy. 2fl

Philadelphia, PA 19103

mchurchill@pilcop.org

Mary M. McKenzie

1709 Benjamin Franklin Parkway

Philadelphia, PA 19103

mmckenzie@pubintlaw.org

Lawrence J. Tabas

Centre Square West, 34th Floor

1500 Market Street

Philadelphia, PA 19102

lawrence.tabas@obermayer.com

Rebecca Lee Warren

Centre Square West, 34th Floor

1500 Market Street

Philadelphia, PA 19102

rebecca.warren@obermayer.com

Michele D. Hangley

Hangley Aronchick at al.

One Logan Square, 27th Floor

Philadelphia, PA 19103

mhangley@hangley.com

Thomas Paul Howell

333 Market Street, 17th Floor

Harrisburg, PA 17101

Phone: 717-772-4252

thowell@pa.gov

Timothy Eugene Gates

Dep’t of State, Office of Chief Counsel

306 North Office Building

Harrisburg, PA 17120

tgates@pa.gov

Jason Torchinsky

45 North Hill Dr. Suite 100

Warrenton, VA 20186

jtorchinsky@hvjt.law

The undersigned further certifies that, on this 5th day of March, 2018, an

original and ten true and correct copies of the foregoing document were served on the

Court by hand delivery.

Executed March 5, 2018, at Washington, DC,

/s/ Lawrence J. Joseph

__________________________

Lawrence J. Joseph

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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