In a major victory for non-wealthy candidates and voters, the U.S. Court of Appeals for the Third Circuit ruled on September 11, 2003, that Pennsylvania may not impose a candidate filing fee on those who are unable to pay. By failing to provide an alternative means of ballot access, “the Commonwealth has made economic status a decisive factor in determining ballot access,” the Court declared. “It therefore has run afoul of the Supreme Court’s ballot access jurisprudence.” While the ruling in the case, Belitskus v. Pizzingrilli, relies on landmark Supreme Court rulings from the 1970s, it adds clarification that will help non-wealthy candidates and voters seeking ballot access.

John Stith, a Green Party activist who ran for State Representative in 2000, and environmental lawyer Thomas Alan Linzey, who ran on the Green ticket for Attorney General, filed the suit shortly before candidate filing fees were due for the 2000 ballot, together with voter Will Donovan III and the Pennsylvania Green Party. The Court issued a preliminary injunction barring the Commonwealth from charging the fee to Stith and other candidates in 2000 who could not afford it, and then in August 2001 ruled that the fee statute violated Stith’s constitutional equal protection rights. Nevertheless, the Commonwealth continued to argue on appeal that its fees were Constitutional. The plaintiffs, represented by NVRI and local counsel Jordan Yeager and David Kairys, cross-appealed on behalf of the other plaintiffs.

Although the U.S. Supreme Court ruled in two decisions of the 1970s that filing fees without an alternative for the non-wealthy are unconstitutional, Bullock v. Carter and Lubin v. Panish, the Commonwealth asserted that because its fees are much lower than the fees struck in those cases, its fees were less of a burden on candidates and therefore entitled to greater deference. The Court of Appeals soundly rejected this argument, holding, “A relatively minimal fee, which is nevertheless mandatory, means only that a smaller class of potential candidates will be barred from the ballot.” Rather than grant the fee provisions deferential review, the Court subjected them to “strict scrutiny,” meaning they would not pass muster unless: (1) they were justified by a governmental interest “of compelling importance” and (2) went no further than necessary to meet that interest. The filing fee flunked both tests.

The Commonwealth also argued that the candidate plaintiffs were not injured by the mandatory fee, since they had enough money to pay the fees at the time they were due. Rebuffing this argument, the Court of Appeals ruled that a fee unconstitutionally burdens candidates even if it does not result in a “complete depletion” of their resources. Holding that a candidate is injured when a fee has a “significant impact” on a his or her ability to meet living expenses and campaign strategy, the Court found that both Stith and Linzey were harmed.

The Third Circuit ultimately ruled that the fees were unconstitutional not only as applied to Stith and Linzey, but also the Pennsylvania Green Party that backed them. Nevertheless, it limited its ruling to these plaintiffs, and struck the lower court’s order requiring Pennsylvania to offer an alternative to others unable to pay the fee, since that would “do nothing more than order the Commonwealth to obey the law as stated in Bullock and Lubin.” This leaves Pennsylvania with two choices: reform its statute or face similar lawsuits in the future. Urging legislative reform, the Third Circuit warned, “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.” It is clear from this ruling that filing fees that exclude candidates based on wealth will no longer be tolerated.

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