Political Peril in Pennsylvania

Ballot Access Penalties Create Chilling Effect

by Mark Brown for Green Institute Publications

Pennsylvania courts have embarked on a contrived and dangerous path in the electoral arena. During the 2004 presidential election, Pennsylvania’s Commonwealth Court, which oversees candidates’ access to Pennsylvania’s
ballots, ordered Ralph Nader to pay over $80,000 in “costs”—including
fees spent on handwriting experts—incurred by Democratic challengers
who successfully removed his name from the ballot. See In re Nader, 905 A.2d 450 (Pa. 2006). This marked the first time in Pennsylvania history that a candidate for political office was forced to pay because he lost. More
recently during the 2006 mid-term elections, Pennsylvania’s courts did
it again—this time ordering Carl Romanelli (the Green Party’s U.S.
Senate candidate) for to pay his Democratic challengers $90,000 to
cover their costs in having him removed from the ballot. See In re Rogers, 907 A.2d 503 (Pa. 2006).

Mark Brown

There are two serious legal problems with Pennsylvania’s newly discovered charges for ballot access. First, Pennsylvania
law does not state that political candidates—like Nader and
Romanelli—can be ordered to pay the legal expenses of successful
challengers. Instead, as pointed out by Justice
Saylor’s dissent in the Nader case, Pennsylvania’s cost-shifting law
(25 P.S. § 2937) merely authorizes the assessment of “court
costs”—meaning charges for transcribing testimony and copying legal
papers—against unsuccessful challengers. See In re Nader, 905 A.2d 450, 461 (Pa. 2006) (Saylor, J., dissenting). Reading Pennsylvania’s ballot access law to authorize charging candidates is not only novel, it is “unnatural” and unprincipled.

Second, assuming that Pennsylvania’s
ballot access law can be read to authorize financial charges against
political candidates, it is most certainly unconstitutional. Beginning
in the 1960s, the Supreme Court handed down a series of decisions
invalidating fees that were commonly charged to voters and candidates. See Harper v. Virginia, 383 U.S. 663 (1966) (holding poll taxes unconstitutional); Bullock v. Carter, 405 U.S. 134 (1972) (holding non-trivial filing fees for candidates unconstitutional); Lubin v. Panish, 415 U.S. 709 (1974) (holding filing fees for candidates unconstitutional in the absence of non-monetary alternatives). Thus, poll taxes placed on voters are unconstitutional. See Harper. So too are filing fees placed on candidates. According
to the Supreme Court, only nominal fees can be required of candidates,
and even then states must provide exceptions for indigence and undue
hardship. See Bullock; Lubin. That is why the United States Court of Appeals recently struck down a Pennsylvania ballot fee—it allowed no exceptions.

Today,
several states still impose filing fees for ballot access—but they also
routinely provide hardship exceptions and allow for non-monetary
access. See Mark R. Brown, Ballot Fees as Impermissible Qualifications for Federal Office, 54 Am. U. L. Rev. 1283, 1306-13 (2005) (cataloging states’ ballot fees and alternatives). None of the fees charged today come anywhere close to the charges assessed against Nader and Romanelli. One percent of an elected office’s annual salary marks the usual maximum, with many states charging far less. See Mark R. Brown, Popularizing Ballot Access: The Front Door to Election Reform, 58 Ohio St. L.J. 1281, 1296 (1997) (observing that ¾ of the states that use filing fees charge 1% of the office’s salary or less). The largest exceptions are Florida, South Carolina, and Arkansas, which charge from $7,000 for the congressional ballot, see Fla. Stat. § 99.092(1), to $10,000 for the presidential ballot. See Trevor Potter & Marianne H. Viray, Barriers to Participation, 36 U. Mich. J.L. Ref. 547, 577 tbl. 1 & 582 tbl. 1 (2003) (describing Arkansas’s and South Carolina’s fees). Because
these fees dwarf those charged in the vast majority of states, many
constitutional law experts believe that they are likely
unconstitutional.

Given the constitutional difficulties described by the Supreme Court in Harper, Bullock and Lubin,
most states today have turned to non-monetary mechanisms—like signature
drives—either as an exclusive means for accessing the ballot, see Brown, Popularizing Ballot Access, supra, at 1284 (noting that about 1/3 of the states rely solely on signatures), or at least as alternatives. See Brown, Ballot Fees as Impermissible Qualifications, supra, at
1308 & n.164 (stating that only Kentucky, Mississippi, Nevada,
Ohio, South Carolina and Wyoming fail to provide alternatives, and that
most states opt for signature collection as opposed to indigence
waivers). And because these mechanisms are
supposed to be alternatives to filing fees, a vast majority of states
have recognized that it makes no constitutional sense to charge
candidates for using them. Indeed, only two states before Pennsylvania—Florida and North Carolina—have ignored this constitutional logic and attempted to charge candidates to verify signatures. North Carolina’s 5-cent-per-signature-fee, however, was ruled unconstitutional in McLaughlin v. North Carolina Board of Elections, 850 F. Supp. 373 (M.D.N.C. 1994). Florida’s
10-cent-per-signature fee—which because Florida uses statistical
sampling translates into several hundred dollars at most, see Fla.
Stat. § 99.097—escaped the same fate only because it was found to
provide a “hardship” exception for candidates who are burdened by the
fee. See Fulani v. Krivanek, 973 F.2d 1539 (11^th Cir. 1992) (holding that the hardship exception must also be extended to minor parties). Candidates and parties in Florida thus do not have to pay a dime.

The practices of the other forty-nine states prove that Pennsylvania’s charge for signature verification is extraordinary. No other state forces unsuccessful candidates to pay costs or fees to challengers who force them off the ballot. No other state—Florida included—demands that candidates pay for signature verification. No other state charges filing fees of any sort that come anywhere near the $80,000+ charged to Nader and Romanelli by the Commonwealth of Pennsylvania. Meanwhile,
the only two federal courts to address the constitutionality of
charging for signature verification have either ruled the practice
unconstitutional, see McLaughlin, or have demanded a complete waiver for those who cannot afford to pay. See Fulani.

Would a law that forces all losing candidates to foot winners’ campaign bills survive constitutional scrutiny? Would a poll-tax charged only to voters who supported losing candidates? The answer to both of these questions is ‘of course not’. Indeed,
“loser pays” requirements are the worst of all worlds in the
political/electoral context. They not only discourage voters and
candidates from participating, they encourage “bandwagon” major-party
politics. Far from being a free market of ideas, the electoral arena is reduced to a political duopoly.

Of course, no state has attempted to impose a poll-tax on voters who support losing candidates. Nor does any state charge candidates for losing. But until now, no state has billed candidates for unsuccessfully seeking the ballot either.

Mark
Brown currently holds the Newton D. Baker/Baker & Hostetler Chair
at Capital University, where he teaches courses on Constitutional Law
and Constitutional Litigation. Together with Kit Kinports, Professor
Brown has authored a book entitled “Constitutional Litigation Under §
1983.” He has also authored several articles addressing various
constitutional issues, including religion, elections, parents’ rights,
gender discrimination, and government’s financial liability for the
wrongs it inflicts.