Nos: 01-3747 v. Kim Pizzingrilli

PRECEDENTIAL
Filed September 11, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 01-3747 and 01-3824
WILLIAM M. BELITSKUS; THOMAS ALAN LINZEY;
BARBARA KNOX; JOHN STITH; ERIC PRINDLE;
JENNARO PULLANO; RALPH NADER;
NADER 2000 PRIMARY COMMITTEE;
PENNSYLVANIA GREEN PARTY; WILL DONOVAN, III
v.
KIM PIZZINGRILLI, in her official capacity
as Secretary of State of Pennsylvania;
RICHARD FILLING, in his official capacity
as the Commissioner overseeing Pennsylvania’s
Bureau of Commissions, Elections and Legislation,
Appellants in Docket No. 01-3747
Thomas Alan Linzey, John Stith*
Pennsylvania Green Party and Will Donovan III,
Appellants in Docket No. 01-3824
* Dismissed Per Clerk’s 11/29/01 Order.
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 00-cv-01300)
District Judge: Honorable A. Richard Caputo
Argued on September 10, 2002
Before: NYGAARD, ROTH and WEIS, Circuit Judges
(Opinion filed September 11, 2003)

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D. Michael Fisher
Attorney General
John G. Knorr, III (Argued)
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Gregory R. Neuhauser
Senior Deputy Attorney General
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellants/Cross
Appellees
Bonita P. Tenneriello, Esquire
(Argued)
John C. Bonifaz
Brenda Wright
Lisa J. Danetz
National Voting Rights Institute
One Bromfield Street, Third Floor
Boston, Massachusetts 02108
Jordan B. Yeager, Esquire
Boockvar & Yeager
2 West Butler Avenue
P.O. Box 1884
Doylestown, PA 18901
David Kairys, Esquire
1719 N. Broad Street
Philadelphia, PA 19122
Counsel for Appellees/Cross
Appellants
OPINION OF THE COURT
ROTH, Circuit Judge:
The Pennsylvania election code requires candidates for
various local, state, and national offices to pay a filing fee
prior to having their names placed on the ballot. During the
2000 campaign, plaintiffs challenged the filing fee,
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contending that the mandatory nature of the fee, coupled
with the absence of an alternative means by which indigent
candidates might gain access to the ballot, violated the
Equal Protection Clause of the Fourteenth Amendment. The
District Court found the mandatory filing fee
unconstitutional as applied to John Stith, a candidate for
the state legislature who demonstrated his inability to pay
the fee without financial hardship. The District Court
therefore permanently enjoined the Commonwealth1 from
applying the challenged fee structure to Stith or to other
similarly situated candidates.
The Commonwealth appealed on the grounds that Stith
had ample resources to pay the fee, that the fee was
constitutional as applied to Stith, and that, even if the fee
was unconstitutional, the District Court’s order was unduly
broad and vague. The remaining plaintiffs, Thomas Linzey,
a candidate for state attorney general, William Donovan, a
registered voter supporting Linzey’s candidacy, and the
Pennsylvania Green Party, of which Stith, Linzey, and
Donovan were members, have cross-appealed the District
Court’s granting of summary judgment against them.
I. Background
A. The Commonwealth’s Ballot Access Laws
The Pennsylvania ballot access law requires candidates
for various public offices to pay a filing fee in order to have
their names placed on the general election ballot.
Specifically, the law provides: “Each person filing any
nomination petition shall pay for each petition, at the time
of filing, a filing fee . . . and no nomination petition shall be
accepted or filed, unless and until such filing fee is paid
. . . .” 25 Pa. Stat. Ann. § 2873(b.1) (emphasis added). The
fees range from $5 to $200, depending on the office sought.
The law applies equally to all candidates regardless of
1. For ease of reference, the two defendants, Kim Pizzingrilli, Secretary of
State, and Richard Filling, Commissioner of the Bureau of Commissions,
Elections, and Legislation, both of whom were sued in their official
capacity, will be collectively referred to throughout this Opinion as “the
Commonwealth.”
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political affiliation. However, it contains no waiver
provisions or other means for an indigent candidate to gain
access to the ballot. The Commonwealth concedes that it
has received “several inquiries” regarding fee waivers but
that it keeps no official record of such inquiries and is
unable to state the exact number received.
Candidate filing fees for statewide elections are paid
when the candidates’ nomination petitions are filed with the
Secretary of the Commonwealth. 25 Pa. Stat. Ann.
§§ 2873(a) & 2873(b.1). The total collected varies by year,
averaging approximately $70,000 to $80,000 in even years,
and $22,000 to $23,000 in odd years. These funds are used
to provide a variety of election-related services, including (1)
review of nomination petitions and papers to ensure
compliance with applicable requirements, (2) review of
documents pertaining to candidate withdrawals and
substitutions, (3) creation and distribution of election
information for candidates, and (4) consideration of and
responses to candidate inquiries. The total cost of such
services is estimated to be approximately $46,000 in even
years, and $23,000 in odd years. The revenue generated by
the filing fees is not, however, expressly earmarked for the
funding of these services. It is instead placed into the
Commonwealth’s general operating fund. See 25 Pa. Stat.
Ann. § 2873(b.1).
In addition to paying the required filing fees, candidates
must also comply with the statutory signature
requirements. Specifically, candidates for statewide office
must collect signatures equal to two percent of the largest
vote total for any statewide candidate in the last election.
25 Pa. Stat. Ann. § 2911(b). Those seeking other offices
must obtain signatures equal to two percent of the largest
vote total received by any candidate in their district during
the last election. Id. However, these signature requirements
are in no way correlated with, or affected by, the applicable
filing fee. Thus, although the number of signatures needed
to obtain ballot access will naturally vary from one district
to another, candidates for positions in the state legislature
all pay the same filing fee regardless of the size of their
district or the number of signatures required.
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B. Factual Background
Plaintiff John Stith sought to have his name placed on
the November 2000 ballot as the Green Party candidate for
State Representative in the 77th District. As such, he was
required to pay a $100 filing fee. To support his allegation
that he would suffer financial hardship if compelled to pay
the fee, Stith has submitted evidence that he had an
adjusted gross income of approximately $35,000 in 1999
and $11,000 in 2000. As of July 2000, his take-home pay
was approximately $1,200 per month, compared to his
monthly living expenses of $1,073.2 At the time the fee was
due, Stith’s assets included $50 in campaign funds and a
personal bank account balance of $1,500. Among his
liabilities were $40,000 in student loans and $3,500 in
credit card debt. Stith made a loan of $1,000 of his own
money to his campaign. The loan was repaid with campaign
funds following the election.3
Plaintiff Thomas Linzey, the Green Party’s candidate for
Attorney General, was required to pay a filing fee of $200 in
order to gain access to the ballot. Like Stith, Linzey alleged
that he too “would suffer financial hardship” if forced to pay
the applicable fee. Linzey’s adjusted gross income for the
year 2000 was $4,611. He incurred average monthly living
expenses of $380 ($150 for rent, $120 for food, $70 for
utilities, $20 in credit card payments, $10 for clothing, and
$10 for fuel and maintenance for his housemate’s car).
Linzey received a $200 check from a campaign supporter
but was unable to cash it because the check was made out
to the “Linzey for Attorney General Committee,” an entity
which did not exist.
Plaintiff William Donovan was a student at Pennsylvania
State University at the time the complaint was filed. He was
registered to vote in the Commonwealth during the
2. There is some debate between the parties as to the proper method for
calculating Stith’s monthly income and expenses. Because we would
reach the same result regardless of which set of figures is used, we will,
for the sake of argument, accept those proffered by the Commonwealth.
3. Although Stith had collected only $50 in campaign contributions at
the time the filing fee was due, he had raised a total of approximately
$4,800 by the time of the election.
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November 2000 election and was a supporter of various
Green Party candidates, including Linzey. His gross income
for the year 2000 was $5,821.68. Donovan no longer lives
in Pennsylvania, and there is no evidence in the record to
suggest he plans to return at any time in the future.
Plaintiff Pennsylvania Green Party, of which Stith, Linzey,
and Donovan are members, is a political body as defined by
Pennsylvania law. See 25 Pa. Stat. Ann. § 2831. It alleges
that many of its candidates “would suffer financial
hardship” as a result of the continued application of the
challenged fee structure. The Party asserts that its
members, many of whom “are drawn from the less affluent
segment of the Pennsylvania community,” support their
chosen candidates “regardless of their ability to pay the
filing fees.” Id.
Defendant Kim Pizzingrilli is Secretary of State of the
Commonwealth. As such, she is responsible for overseeing
various aspects of the Commonwealth’s election process,
including receipt of candidates’ nomination petitions and
filing fees. Defendant Richard Filling serves as
Commissioner for the Bureau of Commissions, Elections
and Legislation and has administrative responsibility for
various aspects of the election process, including ballot
access. Both defendants were sued in their official capacity.
II. Procedural History
Plaintiffs filed their complaint on July 24, 2000.
Pursuant to 42 U.S.C. § 1983, they seek, inter alia,
declaratory and injunctive relief on behalf of a number of
individuals and political organizations.4 Specifically, they
allege that the statutes establishing the Commonwealth’s
ballot access scheme violate the Equal Protection Clause of
the Fourteenth Amendment.
On July 25, 2000, the District Court denied plaintiffs’
request for a temporary restraining order but then, on July
4. Of these, only Stith, Linzey, Donovan, and the Pennsylvania Green
Party are before us on appeal. The remaining plaintiffs were dismissed
by joint stipulation, see Fed. R. Civ. P. 41, prior to the filing of the cross-
motions for summary judgment.
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28, the court granted a preliminary injunction as to Stith
and “any otherwise qualified candidate who is unable to
pay the cost of the fee.” This injunction required the
Commonwealth to provide Stith and other similarly situated
candidates with “an alternative measure or measures for
gaining access to the ballot prior to or at the time of the
August 1, 2000 deadline.”
As a result of the preliminary injunction, the
Commonwealth offered to exempt Stith and Linzey from
payment of their respective fees upon their execution of an
affidavit declaring that they could not comply with the law
without suffering financial hardship. Stith and Linzey both
signed affidavits and were placed on the November 2000
ballot without having to pay the required fees.5
The District Court entered a permanent injunction on
August 20, 2001, enjoining the Commonwealth from
applying the statutory fee to “Plaintiff Stith or other
candidates who cannot afford to pay the filing fee.”
Belitskus v. Pizzingrilli, No. 3:CV-00 1300, 2001 WL
34064600, at *4 (M.D. Pa. Aug. 20, 2001). The permanent
injunction further prohibited the Commonwealth from
“requiring candidates to pay a filing fee they cannot afford
in order to appear on the ballot.” Id. Because the District
Court concluded that Linzey and Donovan failed to
demonstrate entitlement to relief, summary judgment was
granted to the Commonwealth with respect to their claims.6
Id. at *2 n.2.
On August 28, 2001, plaintiffs moved to amend the
injunction to include Linzey. The District Court denied this
motion, stating that the broad scope of the order permitted
5. Copies of these affidavits were not included in the record. However,
neither party disputes this issue, and we therefore accept Plaintiffs’
representations as to the affidavits’ existence and content.
6. This portion of the District Court’s ruling has caused some confusion.
The court mistakenly classified Donovan as a candidate, rather than a
voter, and therefore granted summary judgment to the Commonwealth
based at least in part on the fact that the court believed Donovan had
failed to sufficiently establish his inability to pay the required fee. In
addition, the order fails to dispose of the claim asserted by the
Pennsylvania Green Party. We address both of these issues below.
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Linzey to attempt at a later time to demonstrate his
inability to pay the required fee, thereby making such an
amendment unnecessary. This appeal and cross-appeal
followed.
III. Jurisdiction and Standards of Review
Plaintiffs filed suit pursuant to 42 U.S.C. § 1983. The
District Court therefore exercised subject matter
jurisdiction over this case pursuant to 28 U.S.C. § 1331.
We have jurisdiction to review a district court’s issuance or
refusal to modify an injunction pursuant to 28 U.S.C.
§ 1292(a).
We exercise plenary review over all jurisdictional
questions, including whether a plaintiff has standing to
assert a particular claim, see General Instrument Corp. of
Del. v. Nu-Tek Elec. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir.
1999), and whether a plaintiff ’s claim is moot. See
Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 295
(3d Cir. 2001). Our review of the District Court’s summary
judgment determinations is also plenary, and we utilize the
same test applied below. Saldana v. Kmart Corp., 260 F.3d
228, 231 (3d Cir. 2001). Thus, “[s]ummary judgment is
appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.’ ” Chisolm v. McManimon, 275
F.3d 315, 321 (3d Cir. 2001) (quoting Fed. R. Civ. P. 56(c)).
Summary judgment is not appropriate, however, “if a
disputed fact exists which might affect the outcome of the
suit under the controlling substantive law.” Josey v. John
R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993).
IV. Discussion
A. Standing
Because “ ‘[t]he existence of a case or controversy is a
prerequisite to all federal actions, including those for
declaratory or injunctive relief,’ ” Philadelphia Fed’n of
Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir. 1998)
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(quoting Presbytery of N.J. of Orthodox Presbyterian Church
v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)), we first must
consider the Commonwealth’s contention that plaintiffs
lack standing to challenge the mandatory filing fee. The fact
that the Commonwealth asserts this argument for the first
time on appeal is immaterial, as “[s]tanding represents a
jurisdictional requirement which remains open to review at
all stages of the litigation.” National Org. for Women, Inc. v.
Scheidler, 510 U.S. 249, 255 (1994); see also Public Interest
Research Group of N.J., Inc. v. Magnesium Elektron, Inc.,
123 F.3d 111, 117 n.5 (3d Cir. 1997) (“Like any
jurisdictional requirement, standing cannot be waived.”).
In order to establish a case or controversy, a plaintiff
must demonstrate the following three elements:
First, the plaintiff must have suffered an injury in fact
— an invasion of a legally protected interest which is
(a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury
and the conduct complained of — the injury has to be
fairly . . . traceable to the challenged action of the
defendant, and not . . . the result of the independent
action of some third party not before the court. Third,
it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable
decision.
AT&T Communications of N.J., Inc. v. Verizon N.J., Inc., 270
F.3d 162, 170 (3d Cir. 2001) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). “These requirements
ensure that plaintiffs have a ‘personal stake’ or ‘interest’ in
the outcome of the proceedings, ‘sufficient to warrant . . .
[their] invocation of federal-court jurisdiction and to justify
exercise of the court’s remedial powers on . . . [their]
behalf.’ ” Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d
164, 175 (3d Cir. 2001) (quoting Wheeler v. Travelers Ins.
Co., 22 F.3d 534, 537-38 (3d Cir. 1994)).
In addressing this issue, the Commonwealth argues that
neither Stith nor Linzey suffered a cognizable injury
because both possessed sufficient funds to pay the
applicable filing fees at the time they were due. Because the
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claims asserted by Donovan and the Pennsylvania Green
Party are derivative of those brought by Stith and Linzey,
the Commonwealth concludes that they too are without
standing to challenge its fee structure.
We disagree. Turning first to Stith, we note that he
possessed only $50 in campaign funds at the time the fee
was due. Although he had a personal savings account
containing approximately $1,500, his liabilities included
roughly $43,500 in unpaid student loans and credit card
debt. In addition, Stith’s monthly income only marginally
exceeded his monthly expenses, and he was unable to
afford basic expenses such as health insurance, dental
care, and prescription eyeglasses. Paying the required fee
would have completely depleted his campaign funds and
required him to delve into his limited personal assets.
Accordingly, we conclude that Stith has successfully
demonstrated sufficient injury to satisfy the requirements
of Article III. See Joint Stock Soc’y, 266 F.3d at 177 (“All
that the Article III’s injury-in-fact element requires is ‘an
identifiable trifle’ of harm”) (quoting United States v.
Students Challenging Regulatory Agency Procedures, 412
U.S. 669, 689 (1973)).
In so concluding, we reject the Commonwealth’s
argument that a candidate challenging a mandatory filing
fee must establish that payment of the fee would result in
the complete depletion of personal or campaign funds in
order to demonstrate injury to a protected interest. See,
e.g., Green v. Mortham, 155 F.3d 1332 (11th Cir. 1998)
(standing not questioned where candidate used campaign
contributions to pay filing fee under protest during
pendency of ballot access challenge); Harper v. Vance, 342
F. Supp. 136, 140 (N.D. Ala. 1972) (three judge panel)
(candidate considered “unable” to pay mandatory filing fee
where doing so would leave him “nearly destitute”).7 Rather,
7. As noted by the court in Harper, the rejection of this argument is
consistent with the approach taken by the Supreme Court regarding
indigent plaintiffs seeking permission to proceed in forma pauperis:
We cannot agree with the court below that one must be absolutely
destitute to enjoy the benefit of the statute. *** To say that no
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we conclude that a significant impact of such a fee on an
indigent candidate’s ability to meet personal living expenses
and on the candidate’s campaign strategy and allocation of
resources is sufficient to satisfy the requirements of Article
III. Indeed, similar harms have often been held to confer
standing in the political context. See, e.g., Becker v. Federal
Election Comm’n, 230 F.3d 381, 386-87 (1st Cir. 2000)
(candidate’s claim that challenged practice of allowing
corporate sponsorship of presidential debates affected use
of his campaign funds and overall strategy held to establish
standing); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st
Cir. 1993) (candidate’s forced choice regarding the
acceptance of public campaign financing affected campaign
strategy and therefore “constitute[d] an injury of a kind
sufficient to confer standing”); Fulani v. Krivanek, 973 F.2d
1539, 1544 (11th Cir. 1992) (standing not questioned
where candidate asserted that paying signature verification
fee “would impose an undue burden by diverting funds
from her party’s attempt to identify, reach, and
communicate with potential supporters”).
Because Stith’s injury is clearly traceable to the actions
of the Commonwealth and was redressed by a favorable
persons are entitled to the statute’s benefits until they have sworn
to contribute to payment of costs, the last dollar they have or can
get, and thus make themselves and their dependents wholly
destitute, would be to construe the statute in a way that would
throw its beneficiaries into the category of public charges. *** [T]he
result [is not] desirable if the effect of this statutory interpretation is
to force a litigant to abandon what may be a meritorious claim in
order to spare himself complete destitution.
Harper, 342 F. Supp. at 140 (quoting Adkins v. E.I. DuPont De Nemours
& Co., 335 U.S. 331, 339-40 (1948)). See also Jones v. Zimmerman, 752
F.2d 76, 78-79 (3d Cir. 1985) (holding that district court abused its
discretion in denying in forma pauperis status to prisoner facing a $5.00
filing fee when the prisoner earned $15.00 per month and had a prison
savings account containing $17.39); Bullock v. Suomela, 710 F.2d 102,
103 (3d Cir. 1983) (district court abused its discretion in denying in
forma pauperis status and requiring prisoner to pay partial filing fee of
$4.00 out of net assets of $4.76); Souder v. McGuire, 561 F.2d 820, 823-
24 (3d Cir. 1975) (district court erred in denying in forma pauperis status
to prisoner with total assets of $50.07).
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decision below, we conclude that Stith has also satisfied the
remaining elements of the case or controversy requirement.
See AT&T Communications, 270 F.3d at 170. We conclude
therefore that he has demonstrated that he has standing to
challenge the mandatory filing fee.
For the reasons stated above, we also hold that Linzey,
whose financial resources were even more limited than
Stith’s, has standing. Indeed, given the fact that Linzey’s
living expenses totaled $4,560 ($380 per month for twelve
months) in 2000, paying the required $200 filing fee would
have caused his expenses to exceed his adjusted gross
income of $4,611. Moreover, the fact that Linzey received a
single $200 campaign donation that would have exactly
covered the cost of his fee does not alter our analysis. Our
conclusion is consistent with the Supreme Court’s rejection
of forced reliance upon campaign contributions to satisfy
mandatory filing fees. See Bullock v. Carter, 405 U.S. 134,
144 (1972).
Finally, because the alleged injuries suffered by Donovan
and the Green Party are derivative of those of Stith and
Linzey, see id. at 143; Henderson v. Fort Worth Independent
School District, 526 F.2d 286, 288 n.1 (5th Cir. 1976) (citing
Bullock for the proposition that a voter wishing to support
a candidate barred from the ballot “clearly has standing” to
challenge the ballot access law at issue), we hold that they
too have satisfied the applicable standing requirements.
B. The Supreme Court’s Ballot Access Jurisprudence
Turning then to the merits of plaintiffs’ challenge to the
Pennsylvania mandatory filing fee, Article I, Section 4,
Clause 1 of the Constitution grants to the individual states
not only the power to regulate congressional elections but
also the inherent power “to regulate their own elections” as
well. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Indeed,
“ ‘as a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accompany
the democratic process.’ ” Id. (quoting Storer v. Brown, 415
U.S. 724, 730 (1974)). Nevertheless, a state’s power to
regulate elections “must be exercised in a manner
consistent with the Equal Protection Clause of the
Fourteenth Amendment.” Bullock, 405 U.S. at 141.
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In order to exercise this inherent power, even though
“ ‘the right to elect legislators in a free and unimpaired
fashion is a bedrock of our political system,’ ” Lubin v.
Panish, 415 U.S. 709 (1974) (quoting Reynolds v. Sims, 377
U.S. 533, 562 (1964)), the states may limit access to the
ballot. For example, they may enact laws limiting the
number of names appearing on a ballot “in order to
concentrate the attention of the electorate on the selection
of a much smaller number of officials.” Id. at 712 (citation
and internal quotation omitted). These restrictions afford
voters “ ‘the opportunity of exercising more discrimination
in their use of the franchise.’ ” Id. Accordingly, mandatory
filing fees are widely used as a means of both limiting ballot
access and recouping some of the costs incurred in the
administration of public elections. Id. at 713.
Nevertheless, the Supreme Court has twice held filing
fees to be unconstitutional if, as here, the state has failed
to provide an alternative means of ballot access for indigent
candidates unable to make the required payment. First, in
Bullock, the Court invalidated a Texas statute that
established a mandatory filing fee but failed to provide any
other means of ballot access. Although the challenged fee in
Bullock was both “far from exceptional” in size, 405 U.S. at
138 and limited to party primaries, id. at 140, the Court
concluded that its exclusionary effect was “neither
incidental nor remote.” Id. at 144. Rather, the Court held
that the statutory scheme at issue tended “to deny some
voters the opportunity to vote for a candidate of their
choosing,” while simultaneously giving affluent voters “the
power to place on the ballot their own names or the names
of persons they favor.” Id. The Court therefore concluded
that the challenged fee structure fell “with unequal weight
on voters, as well as candidates, according to their
economic status.” Id.
The Supreme Court next addressed the mandatory filing
fee issue in Lubin. There, it again recognized the state’s
legitimate interest in limiting ballot access:
A procedure inviting or permitting every citizen to
present himself to the voters on the ballot without
some means of measuring the seriousness of the
candidate’s desire and motivation would make rational
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voter choices more difficult because of the size of the
ballot and hence would tend to impede the electoral
process. That no device can be conjured to eliminate
every frivolous candidacy does not undermine the
state’s effort to eliminate as many such as possible
. . . . Rational results within the framework of our
system are not likely to be reached if the ballot for a
single office must list a dozen or more aspirants who
are relatively unknown or have no prospects of
success.
415 U.S. at 715-16.
The Court nevertheless held that this interest “must be
achieved by a means that does not unfairly or
unnecessarily burden either a minority party’s or an
individual candidate’s equally important interest in the
continued availability of political opportunity.” Id. at 716.
Accordingly, because fee statutes can “operate to exclude
some potentially serious candidates from the ballot without
providing them with any alternative means of coming before
the voters,” the Court held that, “in the absence of
reasonable alternative means of ballot access, a State may
not, consistent with constitutional standards, require from
an indigent candidate filing fees he cannot pay.” Id. at 718.
It is against this backdrop that we consider the challenge
before us.
C. Anderson Balancing
Our first step in analyzing equal protection claims is to
determine the appropriate level of scrutiny. Reform Party of
Allegheny Co. v. Allegheny Co. Dep’t of Elections, 174 F.3d
305, 314 (3d Cir. 1999) (en banc). Making this
determination requires an analysis of the challenged fee’s
effect on plaintiffs’ rights. Id.
In examining this issue we note that, as a practical
matter, it is self-evident that state statutes regulating ballot
access “ ‘inevitably affect — at least to some degree — the
individual’s right to vote and his right to associate with
others for political ends.’ ” Council of Alternative Political
Parties v. Hooks, 179 F.3d 64, 70 (3d Cir. 1999) (Alternative
Political Parties II) (quoting Anderson, 460 U.S. at 788).
Nevertheless, “not all such restrictions are
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unconstitutional.” Id. Rather, “[w]here the statute imposes
only a minimal nondiscriminatory burden on minor parties,
yet affords ‘reasonable access’ to the ballot, it generally has
been upheld.” Id. (citing Burdick, 504 U.S. at 438). Indeed,
subjecting “every voting regulation to strict scrutiny and
. . . requir[ing] that the regulation be narrowly tailored to
advance a compelling state interest . . . would tie the hands
of States seeking to assure that elections are operated
equitably and efficiently.” Burdick, 504 U.S. at 433.
“Accordingly, the mere fact that a State’s system ‘creates
barriers . . . tending to limit the field of candidates from
which voters might choose . . . does not of itself compel
close scrutiny.’ ” Id. at 433-34 (quoting Bullock, 405 U.S. at
143).
In light of these competing interests, the Supreme Court
has developed the following balancing test for use in
determining the appropriate level of scrutiny to be applied
in ballot access cases:
[A reviewing court] must first consider the character
and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate. It then must
identify and evaluate the precise interests put forward
by the State as justifications for the burden imposed by
its rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of those
interests; it must also consider the extent to which
those interests make it necessary to burden the
plaintiff ’s rights. Only after weighing all these factors
is the reviewing court in a position to decide whether
the challenged provision is unconstitutional.
Anderson, 460 U.S. at 789. Pursuant to this test, “the
rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment
rights.” Burdick, 504 U.S. at 434. “[W]hen those rights are
subjected to ‘severe’ restrictions, the regulation must be
‘narrowly drawn to advance a state interest of compelling
importance.’ ” Id. (quoting Norman v. Reed, 502 U.S. 279,
289 (1992)). However, “when a state election law provision
imposes only ‘reasonable, nondiscriminatory restrictions’
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upon the First and Fourteenth Amendment rights of voters,
‘the State’s important regulatory interests are generally
sufficient to justify’ the restrictions.” Id. at 434 (quoting
Anderson, 460 U.S. at 788).8
Our first step in applying Anderson requires a
consideration of the burdens imposed on plaintiffs’
constitutional rights. See Anderson, 460 U.S. at 789. Here,
plaintiffs contend that the rights of indigent candidates and
their supporters are severely burdened by the filing fees at
issue and that the challenged ballot access scheme
therefore is subject to strict scrutiny under Anderson and
its progeny. In reply, the Commonwealth urges that Stith
8. We note that Anderson was not expressly decided on equal protections
grounds, see Anderson, 460 U.S. at 786, and that some uncertainty
therefore exists regarding its applicability to equal protection-based
challenges of state ballot access laws such as the one at bar. See, e.g.,
Fulani, 973 F.2d at 1543 (“It is not entirely clear . . . whether the
Supreme Court would apply [the Anderson test] in an equal protection
situation. None of the Supreme Court cases employing the Anderson test
concerned an equal protection challenge to state election laws.”); Recent
Cases, 113 HARV. L. REV. 1045, 1047 n.27 (2000) (“In the years since the
Anderson test was formulated, the Supreme Court has not evaluated any
ballot access restrictions under the Equal Protection Clause. As a result,
legitimate disagreement exists about whether the Anderson balancing
test applies in that context.”). However, neither party challenges its
application to the instant equal protection claim, nor do we see any basis
for refusing to so apply it. See Reform Party, 174 F.3d at 314 (assuming
that certain burdens “require the same level of scrutiny in an equal
protection analysis that they do in an associational rights analysis”);
Republican Party of Arkansas v. Faulkner Co., 49 F.3d 1289, 1293 n.2
(8th Cir. 1995) (“In election cases, equal protection challenges essentially
constitute a branch of the associational rights tree. When the Supreme
Court finds a violation of Equal Protection, it is nevertheless First and
Fourteenth Amendment associational rights which are inequitably
burdened.”); Fulani, 973 F.2d at 1543 (finding Anderson applicable to
equal protection-based challenges to ballot access laws).
Additionally, we note that, although Anderson involved a national
election, we have previously held that it is equally applicable in the
context of state elections. See Council of Alternative Political Parties v.
Hooks, 121 F.3d 876, 882 (3d Cir. 1997) (Alternative Political Parties I).
We therefore conclude that its application to the case before us is
appropriate.
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and Linzey had sufficient resources from which to pay the
applicable filing fee. It therefore contends the burdens they
faced were minimal, and that strict scrutiny is thus
inappropriate.
For the reasons cited above in our discussion of Article III
standing, we reject the argument that Stith and Linzey were
required to pay the mandatory fees simply because they
had access to minimally sufficient funds to do so. Although
we do not pass on the precise showing necessary to
establish the type of financial hardship contemplated by the
Supreme Court in Bullock and Lubin, we conclude that
difficulty in raising the funds to pay the required fee, looked
at in light of the total assets and liabilities of the candidate,
is sufficient to satisfy the test. The fact that, in order to pay
the fee, Stith and Linzey would have had to completely
deplete their campaign funds and to expend funds needed
to pay ongoing living expenses and prior legitimate debts is
sufficient to demonstrate financial hardship.
Moreover, if a ballot access scheme, such as the one
here, imposes a mandatory filing fee but fails to provide an
alternative means of ballot access, such as signature
collection, that scheme constitutes a severe burden on the
rights of indigent candidates and their supporters. This
conclusion is clearly supported by the Supreme Court’s
decision in Bullock. There, the Court conceded that the
“disparity in voting power” caused by election systems that
separate candidates on the basis of wealth “cannot be
described by reference to discrete and precisely defined
segments of the community as is typical of inequities
challenged under the Equal Protection Clause.” 405 U.S. at
144. It further noted that “there are doubtless some
instances of candidates representing the views of voters of
modest means who are able to pay the required fee.” Id.
Nevertheless, the Court concluded that such systems
clearly “fall[ ] with unequal weight on voters, as well as
candidates, according to their economic status.” Id.
The Bullock Court therefore looked to poll tax cases such
as Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966),
which utilized traditional equal protection strict scrutiny
analysis, as providing the appropriate level of scrutiny for
analysis of ballot access laws such as those at issue here.
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See Bullock, 405 U.S. at 142-44; see also Anderson, 460
U.S. at 792-93 & n.15 (citing Bullock for the proposition
that “it is especially difficult for the State to justify a
restriction that limits political participation by an
identifiable political group whose members share a
particular viewpoint, associational preference, or economic
status”); Dart v. Brown, 717 F.2d 1491, 1501 (5th Cir.
1983) (noting that the application of strict scrutiny in
Bullock and Lubin); Adams v. Askew, 511 F.2d 700, 703
(5th Cir. 1975) (“[W]here the fees exacted have ‘a real and
appreciable impact on the exercise of the franchise,’ based
solely upon lack of wealth and inability to translate voter
support into dollars, a strict standard of review is to be
applied.”) (quoting Bullock, 405 U.S. at 144).
The Commonwealth points to the size of its filing fees as
a reason to avoid strict scrutiny. This argument is not
sufficient. A relatively minimal fee, which is nevertheless
mandatory, means only that a smaller class of potential
candidates will be barred from the ballot. See Lubin, 415
U.S. at 717 (even moderate fees may prevent “impecunious
but serious candidates . . . from running”). In the absence
of a reasonable alternative means of ballot access, any
mandatory fee, no matter how small, will inevitably remain
“exclusionary as to some aspirants.” Id. at 718. We
therefore conclude that the Commonwealth’s failure to
provide a reasonable alternative means of ballot access
severely burdened plaintiffs’ rights.
The second, and final, step under Anderson requires us
to “identify and evaluate the precise interests put forward
by the [Commonwealth] as justifications for the burden
imposed by its rule.” 460 U.S. at 789. In so doing, we
“must not only determine the legitimacy and strength” of
the interests asserted by the Commonwealth, but “also
must consider the extent to which those interests make it
necessary to burden [Stith and Linzey’s] rights.” Id.
Because we have found the burden to be severe in this
case, the Commonwealth’s regulations “must be narrowly
drawn to advance a state interest of compelling
importance.” Burdick, 504 U.S. at 434 (internal quotations
omitted).
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In conducting this analysis, “we cannot speculate about
possible justifications” for the challenged statute, but
instead “ ‘must identify and evaluate the precise interests
put forward by the [Commonwealth] as justifications for the
burden imposed by its rule.’ ” Reform Party, 174 F.3d at
315 (quoting Anderson, 460 U.S. at 789). Moreover, our
review is limited to those justifications cited by the
Commonwealth before the District Court, as “ ‘[i]t is well
established that failure to raise an issue in the district
court constitutes a waiver of the argument.’ ” Id. at 316
(quoting Brenner v. Local 514, United Bhd. of Carpenters,
927 F.2d 1283, 1298 (3d Cir. 1991).
Here, the Commonwealth identified two justifications for
the imposition of the disputed fees: (1) the regulation
and/or limitation of the number of candidates permitted on
the ballot, and (2) the use of filing fees to defray election
costs. We consider each in turn.
First, with respect to the Commonwealth’s assertion that
a mandatory filing fee properly limits ballot access to
serious candidates, we note, as the District Court did, see
Belitskus, 2001 WL 34064600 at *4, that the Bullock Court
found such fees to be “extraordinarily ill-fitted to that goal”
due to the availability of other means for protecting such
interests. Bullock, 405 U.S. at 146. Indeed, courts in
subsequent cases have repeatedly held that mandatory fees
do not, in and of themselves, properly separate out
spurious candidates. See, e.g., Clements v. Fashing, 457
U.S. 957, 964 (1982) (“Economic status is not a measure of
a prospective candidate’s qualifications to hold elective
office, and a filing fee alone is an inadequate test of
whether a candidacy is serious or spurious.”); Lubin, 415
U.S. at 717 (“Filing fees, however large, do not, in and of
themselves, test the genuineness of a candidacy or the
extent of the voter support of an aspirant for public office.
A large filing fee may serve the legitimate function of
keeping ballots manageable but, standing alone, it is not a
certain test of whether the candidacy is serious or
spurious.”); Fulani, 973 F.2d at 1547 (states “cannot use [a
signature verification fee] to decide who deserves to be on
the ballot,” as “a party’s ability to pay a verification fee is
not rationally related to whether that party has a modicum
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of support”); Dixon v. Maryland State Admin. Bd. of Election
Laws, 878 F.2d 776, 784 (4th Cir. 1989) (noting that
mandatory fees “bar neither a wealthy frivolous candidate,
who can afford the fee, nor a destitute one, who is entitled
to a waiver”).
We see no basis for reaching a different conclusion
where, as here, the Commonwealth’s election laws also
contain signature requirements, see 25 Pa. Stat. Ann.
§ 2911, that more appropriately measure a candidate’s level
of commitment and popular support than does a
mandatory filing fee. In contrast to the fee, these signature
requirements fall equally on all candidates regardless of
economic status. See Green v. Mortham, 989 F. Supp. 1451,
1461 (M.D. Fla.), aff ’d, 155 F.3d 1332 (11th Cir. 1998).
Accordingly, even though the Commonwealth’s interest in
limiting the number of candidates on the ballot may be
considered to be one “of compelling importance,” Burdick,
504 U.S. at 434, its attempt to achieve this goal by
imposing a mandatory filing fee in addition to the existing
signature requirement while, at the same time, failing to
provide an alternative means of ballot access, can in no
way be said to be “narrowly drawn.” See Lubin, 415 U.S. at
718 (“Selection of candidates solely on the basis of ability to
pay a fixed fee without providing any alternative means is
not reasonably necessary to the accomplishment of the
State’s legitimate election interests.”). We therefore reject
this interest as a potential justification for the challenged
ballot access scheme.
The Commonwealth’s second asserted justification — that
it has a legitimate interest in defraying the costs of
elections — has been rejected by the Supreme Court in its
determination that a candidate need not pay his share of
the costs of an election that his participation incurs. See
Bullock, 405 U.S. at 148; see also Dixon, 878 F.2d at 783
(citing Bullock for the proposition that costs which are
simply “concomitants of the State’s legislative choice to hold
an election” may not be imposed on candidates). Such a
claim is particularly unavailing here where the fees
collected exceed the costs incurred by the Commonwealth
for the election related services described earlier and are
deposited directly into the Commonwealth’s general
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operating fund. Thus, we conclude that this interest is not
“of compelling importance,” nor is the means of achieving it
“narrowly drawn.” Burdick, 504 U.S. at 434. We therefore
also reject it as a basis for upholding the constitutionality
of the Commonwealth’s mandatory filing fee as applied to
Stith and Linzey.
In making this “as applied analysis,” we do not
disapprove of the importance of the interests cited by the
Commonwealth. Our rejection of these interests as
justifications for the mandatory filing fee is premised not on
their legitimacy, but rather on the fact that they do not
resolve the core issue before us. Simply put, this case is not
about the size of the challenged filing fees, which, as the
Commonwealth correctly notes, are relatively moderate. Nor
is it about the interests pursued by the Commonwealth in
assessing these fees. Indeed, both interests cited by the
Commonwealth are legitimate; they have been recognized as
such by the Supreme Court, see Lubin, 415 U.S. at 713,
and have repeatedly been held to justify similar filing fees
when the challenged ballot access scheme includes a
reasonable alternative means of ballot access. See, e.g.,
Lindstedt v. Missouri Libertarian Party, 160 F.3d 1197,
1199 (8th Cir. 1999); Green, 155 F.3d at 1338; Matthews v.
Little, 498 F.2d 1068, 1069 (5th Cir. 1974).
Rather, the primary issue in this case is the absence of
a reasonable alternative means of ballot access. See Fulani,
973 F.2d at 1546; Little v. Florida Dep’t of State, 19 F.3d 4,
5 (11th Cir. 1994) (“It is undisputed that a filing fee as part
of the qualifications for seeking elected office does not run
afoul of the constitution where . . . an alternative method
is also available.”). By failing to provide such an alternative,
the Commonwealth has made economic status a decisive
factor in determining ballot access. It therefore has run
afoul of the Supreme Court’s ballot access jurisprudence.
See Anderson, 460 U.S. at 805 (“For even when pursuing a
legitimate interest, a State may not choose means that
unnecessarily restrict constitutionally protected liberty. . . .
If the State has open to it a less drastic way of satisfying its
legitimate interests, it may not choose a legislative scheme
that broadly stifles the exercise of fundamental personal
liberties.”) (citations and internal quotations omitted).
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Because we conclude that the Pennsylvania mandatory
filing fee, as applied to Stith and Linzey, clearly violates the
Equal Protection Clause, we will affirm the District Court’s
grant of summary judgment as to Stith’s claim, and we will
reverse and remand the District Court’s ruling as to Linzey
with instructions that summary judgment be entered on his
behalf.
D. Claims Asserted by Donovan and the Pennsylvania
Green Party
As noted above, the District Court entered summary
judgment in favor of the Commonwealth with respect to the
claim asserted by Donovan. However, the August 20th
Order has caused some confusion, as it appears the
District Court mistakenly classified Donovan as a candidate
rather than a voter and also failed to dispose of the claim
brought by the Green Party.9
In their cross-appeal, Donovan and the Green Party now
contend that the ruling below was equivalent to a finding
that the Commonwealth’s ballot access scheme is
unconstitutional on its face. Each then argues in the
alternative that they are entitled to summary judgment
even in the absence of a finding of facial
unconstitutionality.
First, we reject the assertion that the District Court
intended to strike the challenged ballot access scheme as
unconstitutional on its face. Simply put, there is no
question that this case was filed and litigated as an “as
applied” challenge.10
9. In ruling on his claim, the District Court held that Donovan “did not
present evidence establishing that [he] could not afford to pay the filing
fee,” and therefore granted summary judgment to the Commonwealth as
to his claim. Belitskus, 2001 WL 34064600, at *2 n.2. The order makes
no mention of the Pennsylvania Green Party.
10. Indeed, plaintiffs’ claims clearly would have failed if brought as a
facial challenge. In order to successfully prosecute such a challenge,
plaintiffs would have to establish that no set of circumstances exist
under which mandatory filing fees are valid. See Artway v. Attorney Gen.
of the State of N.J., 81 F.3d 1235, 1252 n.13 (3d Cir. 1996) (“To make
a successful facial challenge in a non-First Amendment context, a
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Nor do we need to reach the merits of Donovan’s “as
applied” claim because we conclude that his claim is not
“capable of repetition, yet evading review,” and is therefore
moot. In order for Donovan’s claim to be excepted from
mootness, Donovan must establish that “(1) the challenged
action was in its duration too short to be fully litigated to
its cessation or expiration and (2) there is a reasonable
likelihood that [he will] be subjected to the same action
again.” Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001).
We have no difficulty in concluding that the claims
asserted by Stith, Linzey, and the Pennsylvania Green Party
meet the above-cited requirements, and that they therefore
are not moot despite the fact that the 2000 election has
long since passed. See Belitskus, 2001 WL 34064600 at *4
n.7; Green, 989 F. Supp. at 1453 (“[I]t is a well-settled
principle that given the brief duration of the election season
ballot access cases are capable of repetition yet susceptible
to evading review. Therefore, the fact that the election at
issue has come and gone does not moot a plaintiff ’s
claims.”).11 Indeed, the Commonwealth makes no argument
litigant ‘must establish that no set of circumstances exists under which
the Act would be valid.’ ”) (quoting United States v. Salerno, 481 U.S.
739, 745 (1987)). Such a ruling would clearly run afoul of the Supreme
Court’s general approval of such fees. See Lubin, 415 U.S. at 712-13;
Bullock, 405 U.S. at 147; see also West Virginia Libertarian Party v.
Manchin, 270 S.E.2d 634, 639 (W. Va. 1980) (noting that Bullock and
Lubin “cannot be read to abrogate all filing fee requirements. Their
teaching is that as to those candidates who cannot pay the filing fee,
some alternative mode of gaining access to the ballot must be provided
such as petitions containing voter signatures.”). Accordingly, a suit such
as the one at bar must, by definition, be brought as an “as applied”
challenge and decided on its facts.
11. Despite our limitation of the scope of the District Court’s injunction,
discussed infra, we have no trouble in concluding that Stith and Linzey’s
“as applied” challenge was too short in duration to be fully litigated prior
to its expiration and that it therefore satisfies the first prong of the
exception to mootness: capable of repetition, yet evading review.
Thus, the only question before us is the second prong of mootness —
whether there is a “demonstrated probability” that the same parties will
again be involved in the same dispute. See Honig v. Doe, 484 U.S. 305,
318 n.6 (1988) (citation omitted).
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to the contrary. We also note that derivative voter claims
similar to the one asserted by Donovan have qualified for
this exception in the past. See Corrigan v. City of Newaygo,
55 F.3d 1211, 1213-14 (6th Cir. 1995) (holding that voters’
claim that their rights were violated by virtue of the fact
that their candidates of choice were barred from the ballot
was capable of repetition, yet evading review).
However, because Donovan has left the Commonwealth,
and there is no evidence in the record to suggest he will
return in the future, we simply cannot find that there is a
reasonable likelihood he will again be eligible to vote for
The question whether Stith and Linzey will run in a future election,
and, if so, whether they will again qualify as indigent, is a close one.
However, as other courts have, we conclude that it is reasonable to
expect political candidates to seek office again in the future. See Vote
Choice, 4 F.3d at 37 n.12 (concluding that the case was not moot where
plaintiff “ha[d] not renounced possible future candidacies, and
politicians, as a rule, are not easily discouraged in the pursuit of high
elective office”). Given the lack of evidence to the contrary, we further
conclude that it is reasonable to assume that Stith and Linzey will again
seek a waiver of the mandatory filing fees based on indigency. Thus,
“[t]here is ‘every reason to expect the same parties to generate a similar,
future controversy subject to identical time constraints . . . .’ ” Patriot
Party of Allegheny County v. Allegheny County Dep’t of Elections, 95 F.3d
253, 257 (3d Cir. 1996) (quoting Norman, 502 U.S. at 287-88). Moreover,
a finding that this case is moot would essentially doom all challenges to
the Commonwealth’s ballot access law, as it is unlikely that any indigent
candidate’s claim could complete its course during a given election. See
Arkansas AFL-CIO v. Federal Communications Comm’n, 11 F.3d 1430,
1436 (8th Cir. 1993) (concluding that forcing plaintiffs to re-litigate their
claim would lead to a reoccurrence of the same issues which prevented
it from being litigated to conclusion prior to the previous election).
Our conclusion that the instant “as applied” challenge is capable of
repetition, yet evading review, comports with the Supreme Court’s
treatment of similar cases. See Storer, 415 U.S. at 737 n.8 (holding that
“as applied” challenge to a state election law was capable of repetition,
yet evading review despite the fact that the election was “long over, and
no effective relief c[ould] be provided to the candidates or voters”); see
also Anderson, 460 U.S. at 784 n.3 (concluding that challenge to state’s
early filing deadline for independent candidates was not moot despite the
fact that the election at issue had passed).
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indigent candidates barred from the ballot by the
challenged fee structure. See Lyons, 461 U.S. at 108-09
(plaintiff ’s claim that he will again be stopped by police and
subjected to unreasonable force too speculative to support
finding that challenged behavior was capable of repetition,
yet evading review); Doe, 257 F.3d at 314 (finding no
reasonable likelihood that a prisoner who is no longer
incarcerated will again be subjected to the allegedly
objectionable practices of prison officials). We therefore lack
jurisdiction to address the merits of his claim, and will
remand it to the District Court with instructions that it be
dismissed as moot. See Klein v. Califano, 586 F.2d 250, 255
(3d Cir. 1978).
Finally, we address the claim that the District Court
erred in failing to grant summary judgment to the
Pennsylvania Green Party.12 Because the claim of the Green
Party is derivative of those asserted by Stith and Linzey and
because both candidates adequately proved their claim, we
conclude that the Green Party also has established
entitlement to relief. We therefore will remand the claim
asserted by the Green Party with instructions that
summary judgment be entered on its behalf.
E. Scope of the Injunction
Rule 65(d) of the Federal Rules of Civil Procedure states,
in pertinent part, as follows:
Every order granting an injunction . . . shall set forth
the reasons for its issuance; shall be specific in terms;
shall describe in reasonable detail, and not by
reference to the complaint or other document, the act
or acts sought to be restrained . . . .
Fed. R. Civ. P. 65(d). As we have previously held, district
courts granting injunctions pursuant to this rule should
craft remedies “no broader than necessary to provide full
relief to the aggrieved plaintiff.” McLendon v. Continental
Can Co., 908 F.2d 1171, 1182 (3d Cir. 1990).
12. Because this appeal is brought pursuant to 28 U.S.C. § 1292(a),
finality of judgment is not required and our jurisdiction to consider these
appeals is unaffected by the District Court’s failure to rule on the
Pennsylvania Green Party’s motion for summary judgment.
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The injunction at issue here permanently enjoins the
Commonwealth from applying the challenged statute “to
Plaintiff Stith or other candidates who cannot afford to pay
the filing fee,” and from “otherwise requiring candidates to
pay a filing fee they cannot afford in order to appear on the
ballot.” Belitskus, 2001 WL 34064600, at *4. The
Commonwealth contends that this order is overly broad
and unduly vague because it prevents the application of the
challenged fee structure to candidates unable to pay the
required amount, but provides no criteria for making such
determinations.
Having reviewed the text of the injunction in light of the
facts of this case and the conclusions reached above, we
conclude that the District Court erred in issuing an
injunction broader than necessary to resolve the harm
demonstrated by plaintiffs. See McLendon, 908 F.2d at
1182. Specifically, we hold that the District Court need only
have enjoined the Commonwealth from enforcing the
mandatory filing fees against Stith and Linzey during the
November 2000 election and in any future election where
they demonstrate that they will be subjected to similar
financial hardship by the requirement that they pay the
mandatory filing fee.
We also hold that it was not necessary for the District
Court to include language in the injunction preventing the
Commonwealth from enforcing the challenged statute
against “candidates who cannot afford to pay the filing fee”
or “otherwise requiring candidates to pay a filing fee they
cannot afford in order to appear on the ballot.” Belitskus,
2001 WL 34064600 at *4. This language does nothing more
than order the Commonwealth to obey the law as stated in
Bullock and Lubin. It therefore will be struck from the
order. See Public Interest Research Group of N.J., Inc. v.
Powell Duffryn Terminals, Inc., 913 F.2d 64, 83 (3d Cir.
1990) (“Overbroad language in an injunction that
essentially orders a party to obey the law in the future may
be struck from the order”); SEC v. Warren, 583 F.2d 115,
121 (3d Cir. 1978) (affirming district court’s decision to
dissolve injunction that “merely require[d] defendants ‘to
obey the law’ in the future . . . a requirement with which
they must comply regardless of the injunction”).
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In closing, we note that the vagueness and uncertainty of
which the Commonwealth complains in challenging the
scope of the District Court’s injunction, as well as the need
for such injunctions in the first instance, could be cured by
simply amending the election code to comply with the
Supreme Court’s ballot access jurisprudence.
Many state election codes similar to the one at issue here
(i.e., ones that impose mandatory fees but lack alternative
means of ballot access) were successfully challenged and/or
amended following the Supreme Court’s decisions in
Bullock and Lubin. See, e.g., Andress v. Reed, 880 F.2d
239, 241 (9th Cir. 1989) (noting that California amended its
election code following Lubin); Robinson v. Pottinger, 512
F.2d 775, 780 (5th Cir. 1975) (Alabama election law held to
violate the Equal Protection Clause under Lubin); Brown v.
North Carolina State Bd. of Elections, 394 F. Supp. 359, 362
(W.D.N.C. 1975) (three judge panel) (North Carolina ballot
access scheme held unconstitutional pursuant to Bullock
and Lubin); West Virginia Libertarian Party, 270 S.E.2d at
639 (West Virginia filing fees held to violate Equal
Protection Clause as applied to indigent candidates under
Bullock and Lubin); see also Br. For Appellees/Cross-
Appellants at nn.16-19 (listing more than two dozen state
statutes providing various alternative means of ballot
access). Thus, the Commonwealth’s current mandatory
filing fee places it among the few states that have failed to
come into compliance with applicable Supreme Court
precedent.
The problems at the core of this case are better resolved
by the Commonwealth’s legislature than by the federal
courts. The current lack of a reasonable alternative means
of ballot access results in an election structure that is
fundamentally flawed and will inevitably fail to pass
constitutional muster as applied to a certain percentage of
candidates. Continued case-by-case litigation of the
Commonwealth’s attempts to collect filing fees from
indigent candidates will not serve the interests of the
candidates, the Commonwealth, or its voters. The only way
in which to conclusively resolve the problems that gave rise
to this litigation is for the legislature to amend the statutes
at issue to comply with the Supreme Court’s ballot access
jurisprudence.
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V. Conclusion
For the reasons stated above, we will affirm the judgment
of the District Court as to Stith, but we will vacate the
injunction and remand it to the District Court to reissue it,
limiting its scope in accordance with this Opinion. We will
also reverse the District Court’s judgments as to Linzey and
the Pennsylvania Green Party and remand these claims to
the District Court with instructions that summary
judgment be entered in their favor and that Linzey be
included as a party named in the injunction. We will
remand the claim asserted by Donovan to the District Court
with instructions that it be dismissed as moot.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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