Amicus Curiae Brief — Rogers v. Cortes (No. 06-1721)

No..06-1721 . “430m |

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Supreme Court of the Gnited Sees

MARAKAY J. ROGERS, et al.,

Petitioners,

¥.

PEDRO A. CORTES, Secretary of Pennsylvania,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

CENTER FOR COMPETITIVE DEMOCRACY

IN SUPPORT OF PETITIONERS

Outver B. HALL

Counsel of Record

CENTER FOR COMPETITIVE DEMOCRACY

PO Box 21090

WasHINGTON, DC 20009

(202) 248-9294

(202) 248-9345 Fax

Counsel for Amicus Curiae

July 30, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. » 800.890.5001

i

TABLE OF CONTENTS

Table of Amie cy was a es.

Protumanary SUE ee ee ee ees

Py Gee Sn eee

I. Section 2911(b) severely burdens minor party

candidates by subjecting them to costs that grossly

exceed fees this Court has struck down as

ee ee Se ee

II. Section 2911(b) severely burdens minor party

voters by forcing them to cast write-in votes that

tine SUNNG TG A ee were.

III. Section 2911(b) severely burdens minor political

parties by terminating their legal status as political

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TABLE OF AUTHORITIES

Cases

Amos v. Hadnott, 394 U.S. 358 (1969) ........... 9

Anderson v. Celebrezze, 460 U.S. 780 (1983) ....... 9

Bullock v. Carter, 405 U.S. 134 (9972)... .... os. 3,4

Burdick v. Takushi, 504 U.S. 428 (1992) .......... 7

Bush v. Gore, 531 U.S. 98 (2000) .............. 5

Communist Party of Indiana v. Whitcomb,

ee Se OE 8 ice te kh hn oc Sk SLE RS 9

De Jonge v. State of Oregon, 299 U.S. 353 (1937) .... 5

Gray v. Sanders, 372 U.S. 368 (1964) ............ 5

Illinois State Bd. of Elections v. Socialist Workers Party,

ails STORIE 6 sa WX oN eR A 9

In re Nader, 905 A.2d 450 (Pa. 2006), cert denied,

So ea ere Gee SOW Re es 3

In re Nomination Paper of Marakay Rogers, /

914 A.2d 457 (Pa. Comm. 2007) ........... 3,4

Jenness v. Fortson, 403 U.S. 431 (1971) .......... 7

Lendall v. Jernigan I, not reported, (1976),

— gp Rg eR 2: 7 era 9

ill

Lubin v. Panish, 415 U.S. 709 (1974) ............ 3

McCarthy v Briscoe, 429 U.S. 1317 (1976)......... 9

Moore v. Ogilvie, 394 U.S. 814 (1969) ......... 9-10

N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) ....... 5

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ........ 4

Norman v. Reed, 502 U.S. 279 (1992) ............ 9

Rogers v. Cortes, 426 F. Supp. 2d 232 (M.D. Pa. 2006),

aff'd 468 F.3d 188 (3 Cir. 2006) ......... 2,4, 8

Salera v. Tucker, 399 F. Supp. 1258 (E.D. PA 1975),

© gg me RR. S| Sa rae 9

Socialist Workers Party v. Rockefeller,

314 F. Supp. 984 (S.D. NY 1970),

Sg gk ee ee ee ee rea 9

South v. Peters, 339 US. 276 (1950) ............ 5

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ..... 5

United States v. Mosley, 238 U.S. 383 (1915) ....... 5

Williams v. Rhodes, 393 U.S. 23 (1968) ......... 7, 10

Statutes

ae es CM, SO. POO uns vw ee ee ee es oo 8

23 Pa. Comet. Sim. ZLB) ww we ese 23.8

ee es CL, Ge. eg oi ce es a ean 5

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1V

Other

“Commonwealth of Pennsylvania 2006 Voter Registration

Totals,” available at http://www.dos.state.pa.us/elections/

lib/elections/O55_voter_registration_statistics/2006genelect

ionvoterregistotalscounty unofficial. pdf ............ 9

“Pennsylvania Write-in Votes by County, November 2006

General Election,” on file with Center for Competitive

Democracy (data provided by Pennsylvania Secretary of State’s

Bureau of Commissions, Elections and Legislation) .... 6

“Voter Registration Statistics,” Pennsylvania Department of

State, available at http://www.dos.state.pa.us/elections/

cwp/view.asp?a= 1310&q=447072 ............... 6

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INTEREST OF AMICUS CURIAE'

The Center for Competitive Democracy is a non-partisan,

non-profit 501(c)(3) organization founded in 2005 to

strengthen American democracy by increasing electoral

competition. The Center works to identify and eliminate

barriers to political participation and to secure free, open and

competitive elections by fostering active civic engagement in

the political process.

' This brief is filed with consent of the parties. Letters of consent

are on file with the Center for Competitive Democracy. The

Coalition for Free and Open Elections paid for printing costs. No

counsel for any party to this case authored the brief in whole or in

part.

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PRELIMINARY STATEMENT

The Center for Competitive Democracy respectfully

submits this brief in support of Petitioners to notify the Court

of three important factors not evident from the record below,

which indicate an urgent need for the Court to accept the

Petition for certiorari filed in Rogers v. Cortes. First, the

challenged statute, Section 2911(b) of the Pennsylvania

election code, imposes severe financial burdens on minor

party candidates, which grossly exceed those this Court has

struck down as unconstitutional. Second, Section 2911(b)

disenfranchises thousands of minor party voters who cast valid

write-in votes that the State fails to count. Third, Section

2911(b), in operation with other provisions of Pennsylvania’s

election code, has terminated the legal status of the

Libertarian Party, the Green Party and the Constitution Party

as minor political parties in the state of Pennsylvania. The

Center for Competitive Democracy therefore requests the

Court to grant the Petition for certiorari so that the Court may

redress the severe burdens that Section 2911(b) imposes on

minor party candidates and voters, and on minor parties

themselves.

ARGUMENT

I. Section 2911(b) severely burdens minor party

candidates by subjecting them to costs that grossly

exceed fees this Court has struck down as

unconstitutional.

The District Court found that Section 2911(b) of the

Pennsylvania election code “does not impose a severe burden”

on minor party candidates. Rogers v. Cortes, 426 F. Supp.

2d 232, 239 (M.D. Pa. 2006), aff'd 468 F.3d 188, 197 (3"

Cir. 2006); see 25 Pa. Const. Stat. § 2911(b) (requiring minor

3

party candidates to collect signatures equal to two percent of

the largest vote cast for a candidate in the last statewide

election). This was clear error. In fact, Section 2911(b)

imposes the most severe financial burdens on minor party

candidates ever recorded in American history.

The Pennsylvania Supreme Court recently construed the

State’s election code to authorize taxation of costs against

candidates who defend their nomination papers when private

parties sue to challenge them under Section 2911(b). See In

re Nader, 905 A.2d 450 (Pa. 2006) (ordering candidates to

pay $81,102.19 in legal costs to private parties who

challenged their nomination papers), cert denied, 549U.S. __

(2007). This decision was without precedent in any

jurisdiction in the United States. Nevertheless, a

Pennsylvania court relied on this dubious decision to require

a candidate in the 2006 elections to pay similar costs. See In

re Nomination Paper of Marakay Rogers, 914 A.2d 457 (Pa.

Comm. 2007) (ordering candidate to pay $80,407.56 in legal

costs to private parties who challenged his nomination

papers). These candidates were never accused - much less

found guilty - of wrongdoing. They merely submitted

nomination papers in an effort to comply with Section

2911(b), and mounted a defense when private parties sued to

challenge them.

The legal costs Pennsylvania imposes on candidates

pursuant to such proceedings clearly violate this Court’s

precedent holding that states may not require “candidates to

shoulder the costs of conducting...elections.” Bullock v.

Carter, 405 U.S. 134, 149 (1972). Pennsylvania does just

that, however, by requiring candidates to pay for challenges

to their nomination papers brought under Section 2911(b). In

effect, Pennsylvania imposes “unfiling” fees on these

candidates after removing them from the ballot. Such fees

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grossly exceed the filing fees this Court has struck down as

unconstitutional. See Lubin v. Panish, 415 U.S. 709 (1974)

(striking down filing fees ranging up to $982); Bullock, 405

U.S. 134 (striking down filing fees ranging up to $8,900).

Furthermore, no _ legitimate state interest justifies

Pennsylvania’s unfiling fees (such as helping to offset the cost

of holding elections), because the fees are payable to private

parties rather than to the State.

The courts below thus erred by considering only the

burden on candidates who comply with Section 2911(b), and

not the burden on those who allegedly fail to comply. See

Cortes, 426 F. Supp. 2d at 238 (“the fact that candidates from

minor parties must potentially expend large sums to solicit

signatures is insufficient to render the law unconstitutional”).

Indeed, the financial burden on candidates who allegedly fail

to comply with Section 2911(b) is so severe that Petitioners

Marakay Rogers, Ken Krawchuk and Hagan Smith were

compelled to withdraw their nomination papers rather than

assume the risk of personal financial destruction. Notably,

the only minor party candidate for statewide office who did

not withdraw his nomination papers in 2006 is currently

appealing an order to pay $80,407.56 to private parties who

sued him under Section 2911(b). See Jn re Nomination Paper

of Marakay Rogers, 914 A.2d 457 (Pa. Comm. 2007)

(unreported order approving bill of costs entered January 24,

2007). Contrary to the lower courts’ conclusion, therefore,

Section 2911(b) is in fact a functional bar to ballot position for

these candidates. See Cortes, 426 F. Supp. 2d at 241.

As such, intervention by this Court is necessary to protect

the rights of minor party candidates to engage in

quintessentially protected conduct by submitting nomination

papers for public office. See N.A.A.C.P. v. Button, 371 U.S.

415, 430 (1963) (states may not penalize those who “seek

5

through lawful means to achieve legitimate political ends”);

N.A.A.C.P. v. Alabama, 357 U.S. 449, 460 (1958) (states

may not penalize those who “engage in association for the

advancement of beliefs and ideas”); Sweezy v. New

Hampshire, 354 U.S. 234, 254 (1957) (states may not infringe

the “constitutional rights of individuals...where no state

interest underlies the state action”); De Jonge v. State of

Oregon, 299 U.S. 353, 364-65 (1937) (states may not curtail

constitutional rights unless the rights are abused to incite

violence and crime).

II. Section 2911(b) severely burdens minor party

voters by forcing them to cast write-in votes that

the State fails to count.

Minor party voters in Pennsylvania, whose candidates

Section 2911(b) functionally barred from the 2006 general

election ballot, had no recourse but to cast write-in votes.

Pennsylvania’s election code guarantees them that right. See

25 Pa. Const. Stat. § 2963(a) (“To vote for a person whose

name is not on the ballot, write, print or paste his name in the

blank space provided for that purpose”). Although the

election code does not specify that write-in votes must be

counted, the decisions of this Court do. See Bush v. Gore,

531 U.S. 98 (2000) (“Having once granted the right to vote

on equal terms, the state may not, by later arbitrary and

disparate treatment, value one person’s vote over that of

another”); Gray v. Sanders, 372 U.S. 368, 380 (1964) (“all

qualified voters have a constitutionally protected right to cast

their ballots and have them counted”); South v. Peters, 339

U.S. 276, 279 (1950) (“The right to vote includes the right to

have the ballot counted”): United States v. Mosley, 238 U.S.

383, 387 (1915) (“the right to have one’s vote counted” has

the same dignity as “the right to put a ballot in a box”).

6

In violation of the state election code’s explicit provision

and this Court’s settled precedent protecting the right to vote,

nine Pennsylvania counties failed to count write-in votes in

2006.* These include Armstrong, Clinton, Fulton, Jefferson,

Lawrence, Monroe, Northumberland, Perry and Philadelphia

counties. It is impossible to determine the exact number of

votes the State failed to count, and therefore how many

Pennsylvania citizens the State disenfranchised, but 7,662

voters residing in these counties were registered members.of

the Green Party, Libertarian Party, or Constitution Party in

2006.* Several registered voters residing in these counties

have submitted sworn affidavits that they cast valid write-in

votes during the 2006 general election, which the State did not

count.‘

? See “Pennsylvania Write-in Votes by County, November 2006

General Election,” on file with Center for Competitive Democracy

(data provided by Pennsylvania Secretary of State’s Bureau of

Commissions, Elections and Legislation).

> See “Commonwealth of Pennsylvania 2006 Voter

Registration Totals,” available at http://www.dos.state.pa.us/

elections/lib/elections/055_voter_registration_statistics/2006genel

ectionvoterregistotalscounty_unofficial.pdf.

* Affidavits from the following Pennsylvania citizens are on file

with the Center for Competitive Democracy, stating that they cast

valid write-in votes that the state of Pennsylvania did not count:

James Babb, 706 Sunnyside Avenue Norristown, PA 19403;

Thomas Martin 298 Shultz Hollow, Julian, PA 16844; Ebert

Beeman, 12746 Route 19 South, Waterford, PA 16441; Sara Tate,

338 Upper St. George Road, Kennderdell, PA 16374; John A.

Murphy, 18 Somerset Drive, East Fallowfield, PA 19320; Orville

C. Robinson, 431 West Rittenhouse Street, Philadelphia, PA

19144; Michael J. Robertson, 614 Canoe Ripple Road, Sligo, PA

16225; Margaret K. Robertson, 614 Canoe Ripple Road, Sligo, PA

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The State’s practice of disenfranchising thousands of

Pennsylvanians by failing to count their write-in votes

alternatively compels this Court to grant the Petition for

certiorari. This Court routinely considers whether states

permit write-in votes when evaluating the burden imposed by

election laws governing ballot access for minor party

candidates. See, e.g., Jenness v. Fortson, 403 U.S. 431, 434

(1971) (upholding Georgia law in part because the law

permitted write-in votes); Williams v. Rhodes, 393 U.S. 23,

35 (1968) (striking down Ohio law in part because the law

banned write-in votes). See also Burdick v. Takushi, 504

U.S. 428, 436 (1992) (upholding ban on write-in votes

because Hawaii provides candidates “easy access to the

ballot”). The courts below never considered the State’s

failure to count write-in votes when evaluating the burd 1s

Section 2911(b) imposes. Review by this Court is therefore

necessary to consider those burdens in light of the thousands

of Pennsylvania citizens the statute disenfranchises.

16255; Berlie R. Etzel, 113 Berlie Lane, Shippenville, PA 16254;

Rochelle Etzel, 113 Berlie Lane, Shippenville, PA 16254; David

Jahn, 403 Harrison Avenue, Glenolden, PA 19036; Peter Javsicas,

5031 Catharine Street, Philadelphia, PA 19143; Brandon Kane,

5031 Catharine Street, Philadelphia, PA 19143; Hillary Aisenstein,

7130 Cresheim Road, Philadelphia, A) 19119; Isabelle Buonocore, \

116 Carpenter Street, Rear 1, Philadelphia, PA 19147; Bob Small, |

305 Rutgers Avenue, Swarthmore, PA 19081; Rich Garella, 1136

Waverly Street Apt. 2, Philadelphia, PA 19147; Michele Grant,

517 S. 6" Street Apt. B, Philadelphia, PA 19147.

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III. Section 2911(b) severely burdens minor political

parties by terminating their legal status as political

parties.

The Court of Appeals upheld the District Court’s finding

that Section 2911(b) imposes “minimal burdens on minor

political parties.” Cortes, 468 F.3d at 197. This too was clear

error. In fact, the burden Section 2911(b) imposes on minor

parties is so severe that the Green Party, the Libertarian Party

and the Constitution Party, each of which qualified as a minor

political party in Pennsylvania prior to the 2006 general

election, no longer qualify.

As the Court of Appeals noted, Petitioners challenge “the

combination of § 2831(a)’s 2% precondition to qualify as a

political party and § 2911(b)’s 2% signature requirement that

a minor political party must obtain in order for its candidates

to be placed on the general election ballot.” /d. at 190. The

Court of Appeals upheld this “two-tiered” process, because it

found the “minimal burdens” imposed to be “justified by

Pennsylvania’s interest in preventing ballot clutter and

ensuring viable candidates.” Jd. at 196-97. However, this

two-tiered process virtually guarantees the demise of minor

parties in Pennsylvania, first by functionally barring their

candidates from the ballot under Section 2911(b), and second

by terminating their legal status as political parties if they fail

to poll two percent in a general election under Section

2831(a). The proof of this vicious dilemma is that the State

in fact disqualified the Green Party, the Libertarian Party and

the Constitution Party as minor political parties after barring

their candidates from the 2006 general election ballot.°

> Voter registration statistics available from Pennsylvania’s

Secretary of State confirm that the State terminated these

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Finally, in justifying the severe burdens the State imposes

On minor parties in Pennsylvania, the courts below invoke a

standard of “viability” that conflicts with this Court’s long-

standing practice of vindicating candidates’ constitutional

rights without regard for their perceived chances of winning

an election. Eleven times, this Court has either placed minor

party candidates on a ballot, or ruled after an election that

they should have been on the ballot, and none of these

candidates were expected to win. See Norman v. Reed, 502

U.S. 279 (1992) (affirming Harold Washington Party

candidates’ right to ballot access); Anderson v. Celebrezze,

460 U.S. 780 (1983) (affirming John B. Anderson’s right to

ballot access); /llinois State Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173 (1979) (affirming Socialist

Workers Party and U.S. Labor Party candidates’ right to

ballot access); Lendall v. Jernigan I, not reported, (1976),

aff'd, 433 U.S. 901 (1977) (affirming independent candidates’

right to ballot access); Salera v. Tucker, 399 F. Supp. 1258

(E.D. PA 1975), aff'd, 424 U.S. 959 (1976) (affirming U.S.

Labor Party caudidate’s right to ballot access); McCarthy v

Briscoe, 429 U.S. 1317 (1976) (affirming independent

candidate Eugene McCarthy’s right to ballot access);

Communist Party of Indiana v. Whitcomb, 414 U.S. 441

(1974) (affirming Communist Party candidates’ right to ballot

access); Socialist Workers Party v. Rockefeller, 314 F. Supp.

984 (S.D. NY 1970), aff'd, 400 U.S. 806 (affirming Socialist

Workers Party and Socialist Labor Party candidates’ right to

ballot access); Amos v. Hadnott, 394 U.S. 358 (1969)

(affirming National Democratic Party of Alabama candidates’

parties’ legal status as minor political parties after the 2006

general election. See “Voter Registration Statistics,”

Pennsylvania Department of State, available at http://www.dos.

state.pa.us/elections/cwp/view.asp?a = 1310&q =447072.

10

right to ballot access); Moore v. Ogilvie, 394 U.S. 814 (1969)

(affirming independent unpledged antiwar presidential

electors’ right to ballot access); Williams v. Rhodes, 393 U.S.

23 (1968) (affirming American Independent Party candidate’s

right to ballot access).

CONCLUSION

Far from imposing minimal burdens on minor party

candidates, minor party voters and minor parties themselves,

Section 2911(b) imposes burdens so severe as to be

unprecedented in the history of American jurisprudence. The

statute penalizes minor party candidates for engaging in

quintessentially protected conduct, disenfranchises thousands

of minor party voters, and terminated the legal status of three

qualified minor parties in Pennsylvania in only one year. For

these reasons, and those stated in the Petition for certiorari,

the Petition should be granted.

July 30, 2007

Respectfully submitted,

OLIVER B. HALL

Counsel for Amicus Curiae

Center for Competitive Democracy

P.O. Box 21090

Washington, D.C. 20009

Tel: (202) 248-9294

Fax: (202) 248-9345

Email: oliverhall@competitivedemocracy.org