By Oliver Hall
Pennsylvanians may notice something unusual when they go to the polls in November: Their choices for governor, lieutenant governor, and U.S. Senate will be limited exclusively to Republican and Democratic candidates. Only four other states' 2010 general-election ballots are so restrictive.
What makes Pennsylvania unique, however - and suggests that something has gone seriously wrong here in the birthplace of America - is that the shortage of choices has been effectively imposed by the courts. The state's courts have shut out minor-party candidates by allowing Republicans and Democrats to collect large money judgments from anyone who attempts to challenge the major parties.
This first happened in 2004, when Democrats retained the law firm Reed Smith to challenge nomination petitions filed by independent presidential candidate Ralph Nader and his running mate, Peter Miguel Camejo. After invalidating more than 30,000 Nader-Camejo signatures on dubious and highly technical grounds - for example, because signers used informal names such as "Bill" instead of "William," or because their current and registered addresses did not match - Commonwealth Court removed the candidates from the ballot. Then it ordered them to pay their challengers more than $80,000 in litigation costs.
It happened again in 2006, when another firm retained by Democrats, Thorp, Reed & Armstrong, challenged Green Party Senate candidate Carl Romanelli's nomination petitions. Commonwealth Court tossed out tens of thousands of petition signatures on flimsy technicalities, bounced Romanelli off the ballot, and ordered him, too, to pay his challengers more than $80,000.
Requiring candidates to pay such costs violates landmark Supreme Court decisions of the civil rights era prohibiting states from imposing poll taxes, filing fees, and other mandatory financial burdens on voters and candidates. As the high court observed more than four decades ago in striking down Virginia's poll tax, "It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution." That explains why the Nader-Camejo and Romanelli judgments are unprecedented.
A divided Pennsylvania Supreme Court nevertheless affirmed both of those judgments over the objections of two dissenting justices. The Pennsylvania courts would not even reconsider the judgments after a grand jury impaneled by the state attorney general revealed, in July 2008, that employees of the House Democratic caucus had illegally prepared the Nader-Camejo and Romanelli petition challenges at taxpayer expense, leading to several felony convictions and guilty pleas.
Earlier this year, a federal court denied the minor parties constitutional relief, calling their injuries under this system "conjectural" and "hypothetical." (An appeal is pending.)
Thanks to these court rulings, minor-party and independent candidates risked further financial jeopardy if they attempted to run in Pennsylvania this year.
Now the major parties are using the explicit threat of judgments for litigation costs to squelch the competition. In August, Republican and Democratic operatives challenged the nomination petitions of every minor-party and independent candidate for statewide office. "The sooner that your clients agree to withdraw," a Republican lawyer wrote to the Libertarian Party's lawyer, "the more likely my clients will agree to not pursue recovery of all their costs." For good measure, he added that "a rough estimate would be $92,255 to $106,455" and cited the Nader-Camejo and Romanelli cases.
The Libertarians withdrew the next day. Green Party, tea-party, and independent candidates also dropped out. Libertarian Party chairman Mik Robertson asked, "What should we do - put our livelihoods at risk just so we can run for public office?"
Ironically, Pennsylvania printed its first official ballots, in 1891, to ensure that voters could choose candidates in private, and any candidate who submitted a nomination petition with a modest number of signatures was included on it. In 1971, however, Pennsylvania quadrupled the signature requirement for minor-party and independent candidates, which is why they must now submit tens of thousands of names. Major-party candidates, by contrast, are on the ballot automatically once they win a party primary.
These discriminatory signature requirements, coupled with the unconstitutional judgments against minor-party and independent candidates who attempt to comply with them, enable Republicans and Democrats to use the threat of litigation to eliminate competition from Pennsylvania's elections.
As long as candidates can be penalized for attempting to run for public office, voters' rights are not safe. There's an urgent need for judicial action and legislative reform - such as the Voter Choice Act introduced by state Sen. Mike Folmer (R., Lebanon) - to restore a semblance of democracy to Pennsylvania's elections.