PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 16-3266 

CONSTITUTION PARTY OF PENNSYLVANIA; 

GREEN PARTY OF PENNSYLVANIA; 

LIBERTARIAN PARTY OF PENNSYLVANIA; 

JOE MURPHY; JAMES N. CLYMER; CARL J. 

ROMANELLI; 

THOMAS R. STEVENS; KEN KRAWCHUK, 

Appellants 

v. 

*PEDRO A. CORTES; JONATHAN M. MARKS 

* (Pursuant to Fed. R. App. P. 43(c))

________________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

 (D. C. Civil Action No. 5-12-cv-02726) 

District Judge: Honorable Lawrence F. Stengel 

Argued on March 22, 2017 

Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit 

Judges 
2

(Opinion filed: December 13, 2017)

Oliver B. Hall, Esq. (Argued)

Center for Competitive Democracy

1835 16th Street N. W., Suite 5

Washington, DC 20009

Counsel for Appellants

Claudia M. Tesoro, Esq. (Argued)

Office of Attorney General of Pennsylvania

21 South 12th Street

Philadelphia, PA 19107

Counsel for Appellee

________________

OPINION

________________

ROTH, Circuit Judge
3

Numerous individuals and groups, collectively known 

as the “Aspiring Parties,”1 filed suit to enjoin the application 

of certain of Pennsylvania’s election laws, arguing that those 

laws were unconstitutional as applied to them. They 

prevailed. The District Court then entered a permanent 

injunction, imposing county-based signature-gathering 

requirements that the Aspiring Parties must meet in order to 

appear on the ballot. The Aspiring Parties appeal once more, 

arguing that those requirements are an unconstitutional vote 

dilution scheme in violation of the Equal Protection Clause of 

the U.S. Constitution. We conclude that the record is 

inadequate to support the signature gathering requirements.

For that reason, we will vacate the injunction and remand.

I. Factual and Procedural Background

In 2012, the Aspiring Parties filed suit under 42 U.S.C. 

§ 1983 against the Secretary of the Commonwealth of 

Pennsylvania and the Commissioner of the Pennsylvania 

Bureau of Commissions, Elections, and Legislation (the 

Commonwealth) in their official capacities. The Aspiring 

Parties claimed that certain of Pennsylvania’s election laws 

violated their First and Fourteenth Amendment rights.

 1 Specifically, the Aspiring Parties consist of: the Constitution 

Party of Pennsylvania, the Green Party of Pennsylvania, and 

the Libertarian Party of Pennsylvania; their respective chairs 

Joe Murphy, Carl Romanelli, and Thomas Robert Stevens; 

James Clymer, a member of the Constitution Party; and Ken 

Krawchuk, a former Libertarian Party candidate for the U.S. 

Senate.
4

As we explained in greater detail in a prior opinion, 

political organizations, which are not classified as “major 

parties” under Pennsylvania law2 and which wish to place 

candidates on the ballot, need to gather a considerable 

number of signatures; the validity of those signatures can be 

challenged.3

 A successful challenge may, under certain 

circumstances, result in an award of costs (which may be 

considerable).4

 The threat of being required to pay these high 

costs has deterred some candidates from running for office.

5

The Aspiring Parties’ suit sought to enjoin these 

requirements. Initially, the case was dismissed for lack of 

standing, but we reversed on appeal.6

 Next, the District Court 

held that the statutes were, in combination, unconstitutional 

as applied to the Aspiring Parties.7

 We affirmed and 

remanded the case to the District Court.8

On remand, the District Court requested that the 

Aspiring Parties and the Commonwealth each submit

proposed orders which would remedy the constitutional 

 2 Currently, only the Republican and Democratic Parties 

qualify as major parties. 3 Constitution Party of Pennsylvania v. Cortes, 824 F.3d 386, 

390 (3d Cir. 2016). 4 Id. at 391.

5 Id. at 392.

6 See Constitution Party of Pennsylvania v. Aichele, 757 F.3d 

347, 368 (3d Cir. 2014).

7 Constitution Party of Pennsylvania v. Cortes, 116 F. Supp. 

3d 486, 507 (E.D. Pa. 2015).

8 Constitution Party of Pennsylvania v. Cortes, 824 F.3d 386, 

399 (3d Cir. 2016)
5

violation. On June 17, 2016, the Aspiring Parties requested 

an injunction, directing that “Defendant Pedro Cortes shall 

place the nominees of Plaintiffs Constitution Party of 

Pennsylvania, Green Party of Pennsylvania and Libertarian 

Party of Pennsylvania on Pennsylvania’s November 8, 2016 

general election ballot,”9 or, in the alternative, that the 

parties’ candidates shall be placed on the ballot if they submit 

appropriate paperwork “on or before the August 1, 2016 

deadline with valid signatures equal in number to the 

requirements imposed upon major party candidates pursuant 

to 25 P.S. § 2872.1 . . ..”10

The Commonwealth responded by proposing, based on 

a bill then pending before the Pennsylvania General 

Assembly,

11 that the Aspiring Parties’ candidates be placed 

on the ballot provided that they gather two and one-half times 

as many signatures as major party candidates must gather.12 

 9 App. 25.

10 App. 26.

11 See H.R. 342, 200th Gen. Assemb., § 2, Reg. Sess. (Pa. 

2016). This bill has passed both houses of the Pennsylvania 

General Assembly and was “Referred to Rules” on June 27, 

2016. As of the date of this opinion, no further action had

been taken. See 

http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.c

fm?txtType=PDF&sessYr=2015&sessInd=0&billBody=H&b

illTyp=B&billNbr=0342&pn=3618. Related legislation 

amending the Pennsylvania Election Code was recently 

introduced by the same Representative who had introduced 

House Bill 342. See H.R. 444, 201st Gen. Assemb., Reg. 

Sess. (Pa. 2017). 

12 App. 29-30.
6

As for the county signature requirements, this bill provided 

that, for the office of Governor, at least 5,000 signatures must 

be gathered to include at least 250 from at least 10 counties. 

(In Pennsylvania, there are the 67 counties). For other statewide offices, this bill required between 1,250 and 2,500

signatures with at least 250 from at least 5 counties.13

Between June 21 and 28, 2016, the District Court held 

five off-the-record status conferences. At those status 

conferences, the Aspiring Parties suggested that the countybased signature-gathering requirements in the 

Commonwealth’s proposed order were unconstitutional vote 

 13 In this bill, the offices of President of the United States and 

United States Senator required 5,000 signatures without a 

county-based distribution requirement. 
7

dilution schemes in violation of the Fourteenth Amendment.

14

Both parties submitted letter briefs outlining their positions 

on that issue.

On June 30, 2016, the District Court adopted the 

Commonwealth’s proposed order. The District Court did not 

find any facts, nor did it explain its decision. The Aspiring 

Parties have appealed, arguing again that the county-based 

signature-gathering requirements in the District Court’s order 

are unconstitutional.

 14 This position may seem to contradict the Aspiring Parties’ 

request that their candidates be placed on the ballot if they 

submit papers with “signatures equal in number to the 

requirements imposed upon major party candidates.” App. 

26. At oral argument, counsel explained that the proposed 

order was intended to require the Aspiring Parties to match 

the total number of signatures required for major parties but 

not the county-based distribution requirements. Oral Arg. 

Recording at 4:42-5:07. The record does not reveal whether 

the District Court initially interpreted the Aspiring Parties’ 

proposed order in this way. However, within a few days of 

submission of the proposed orders, the District Court held 

status conferences with the parties, and the Aspiring Parties 

submitted a letter brief opposing the county-based signaturegathering requirements. Thus, we believe there was no 

waiver here; the District Court was informed of the Aspiring 

Parties’ views within an appropriate amount of time.
8

II. Discussion15

A. Standard of Review

Our review of the constitutionality of the District 

Court’s injunction is plenary.16

B. County-Based Signature Requirements

The question of the constitutionality of county-based 

signature-gathering requirements has a long history. Over the 

course of three opinions in the early 1960’s, the Supreme 

Court articulated the principle of “one person, one vote” 

contained in the Equal Protection Clause.17 The essence of 

this principle is that each voter’s vote must be counted 

equally. Observing that the Fifteenth and Nineteenth 

 15 The District Court had jurisdiction pursuant to 28 U.S.C. § 

1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

While conceding jurisdiction under § 1331, the Aspiring 

Parties argue that the District Court did not have jurisdiction 

to enter the injunction on appeal here because it reached 

issues not properly before it. This argument lacks merit. The 

District Court had found a constitutional violation and had 

jurisdiction to fashion a remedy. See Consumer Party v. 

Davis, 778 F.2d 140, 146 (3d Cir. 1985) (observing that a 

district court has wide, although not infinite, discretion to 

fashion a remedial injunction).

16 Ne. Women’s Ctr., Inc. v. McMonagle, 939 F.2d 57, 66 (3d 

Cir. 1991).

17 Reynolds v. Sims, 377 U.S. 533 (1964); Gray v. Sanders, 

372 U.S. 368 (1963); Baker v. Carr, 369 U.S. 186 (1962).
9

Amendments protect the rights of people of different races 

and sexes to vote, the Supreme Court reasoned:

If a State in a statewide election weighted the 

male vote more heavily than the female vote or 

the white vote more heavily than the Negro 

vote, none could successfully contend that that 

discrimination was allowable. How then can 

one person be given twice or 10 times the 

voting power of another person in a statewide 

election merely because he lives in a rural area 

or because he lives in the smallest rural county? 

Once the geographical unit for which a 

representative is to be chosen is designated, all 

who participate in the election are to have an 

equal vote—whatever their race, whatever their 

sex, whatever their occupation, whatever their 

income, and wherever their home may be in that 

geographical unit. This is required by the Equal 

Protection Clause of the Fourteenth 

Amendment.18

Thereafter, in Moore v. Ogilvie, the Supreme Court 

applied this principle to requirements that candidates who 

wished to have their names placed on the ballot gather a 

minimum number of signatures from a specified number of 

counties in a state.19 In Moore, Illinois required that a 

candidate, who wished to appear on the ballot, gather 

signatures from at least 25,000 qualified voters, including at 

least 200 qualified voters from each of at least 50 counties in 

 18 Gray, 372 U.S. at 379 (citation omitted). 19 394 U.S. 814 (1969).
10

the state.20 At the time, “93.4% of the State’s registered 

voters reside[d] in the 49 most populous counties, and only 

6.6% [were] resident in the remaining 53 counties.”21 

Because “the electorate in 49 of the counties which contain 

93.4% of the registered voters [might] not form a new 

political party and place its candidates on the ballot,” but 

“25,000 of the remaining 6.6% of registered voters properly 

distributed among the 53 remaining counties [might] form a 

new party to elect candidates to office[,]” this requirement 

“discriminate[d] against the residents of the populous 

counties of the State in favor of rural sections” in violation of 

the “one person, one vote” principle.22

Subsequently, Anderson v. Celebrezze set out a process 

for resolving constitutional challenges to state election laws.23 

Under Anderson, a 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 

 20 Id. at 815.

21 Id. at 816.

22 Id. at 819. While the requirements at issue involved 

gathering signatures of voters rather than casting votes, the 

Court held that “[a]ll procedures used by a State as an integral 

part of the election process must pass muster against the 

charges of discrimination or of abridgment of the right to 

vote.” Id. at 818.

23 460 U.S. 780 (1983).
11

burden imposed by its rule. In passing 

judgment, the Court must not only determine 

the legitimacy and strength of each of those 

interests; it also must 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.24

While Anderson specifically involved the right to free 

association under the First Amendment, this Court has 

applied the Anderson analysis to Equal Protection challenges 

as well.25

Both before and after Anderson, county-based 

signature-gathering requirements have fared poorly in the 

courts. At least three different circuit courts, seven district 

courts, and one state supreme court have all held in reported 

decisions that a state’s county-based signature-gathering 

 24 Id. at 789. 25 Belitskus v. Pizzingrilli, 343 F.3d 632, 643 (3d Cir. 2003); 

accord Blomquist v. Thomson, 739 F.2d 525, 527 (10th Cir. 

1984).
12

requirements were unconstitutional.26 The essential difficulty

that a state faces in justifying a county-based signature-

 26 See Am. Civil Liberties Union of Nevada v. Lomax, 471 

F.3d 1010, 1012, 1020 (9th Cir. 2006) (striking down a 

requirement of signatures from 10% of voters in 13 of 

Nevada’s 17 counties); Idaho Coal. United for Bears v. 

Cenarrusa, 342 F.3d 1073, 1075 & n.3, 1077 (9th Cir. 2003)

(6% of voters in 22 of Idaho’s 44 counties); Blomquist v. 

Thomson, 739 F.2d 525, 528 (10th Cir. 1984) (8,000 voters 

from 2 of Wyoming’s 23 counties); Communist Party of 

Illinois v. State Bd. of Elections for State of Ill., 518 F.2d 517, 

518, 521 (7th Cir. 1975) (25,000 voters, of which not more 

than 13,000 could be from any one of Illinois’s 102 counties); 

Montana Pub. Interest Research Grp. v. Johnson, 361 F. 

Supp. 2d 1222, 1224-25, 1229-30 (D. Mont. 2005) (5% of 

voters in at least half of Montana’s 56 counties); Libertarian 

Party of Nebraska v. Beermann, 598 F. Supp. 57, 60 (D. Neb. 

1984) (1% of voters in 19 of Nebraska’s 93 counties); 

McCarthy v. Garrahy, 460 F. Supp. 1042, 1050 (D.R.I. 1978)

(25 signatures in 5 of Rhode Island’s 5 counties); Baird v. 

Davoren, 346 F. Supp. 515, 522 (D. Mass. 1972) (3% of 

voters in the last gubernatorial election, of which no more 

than one-third from one of Massachusetts’s 14 counties); 

Socialist Labor Party v. Rhodes, 318 F. Supp. 1262, 1272 

(S.D. Ohio 1970) (200 voters from 30 of Ohio’s 88 counties), 

aff’d sub nom. Sweetenham v. Gilligan, 409 U.S. 942 (1972); 

Socialist Workers Party v. Rockefeller, 314 F. Supp. 984, 

989-991 (S.D.N.Y.) (50 voters from 62 of New York’s 62 

counties), aff’d, 400 U.S. 806 (1970); Socialist Workers Party 

v. Hare, 304 F. Supp. 534, 535-36 (E.D. Mich. 1969) (100 

voters from 10 of Michigan’s 83 counties); Gallivan v. 
13

gathering requirement under Moore and Anderson is that, in 

the final step of Anderson—“consider[ing] the extent to 

which [the state’s asserted] interests make it necessary to 

burden the plaintiff’s rights”27—alternatives to county-based 

requirements are readily available. Typically, the state’s 

justification for county-based signature-gathering 

requirements is to keep frivolous candidates off the ballot by 

requiring that a candidate show some support across a 

significant portion of the state.28 However, signaturegathering requirements based on geographical units other than 

counties may serve that interest just as well. For example, 

congressional districts must have populations that are “as 

nearly as practicable” equal in population;29 thus, requiring a 

minimum number of signatures to be gathered from different 

congressional districts serves the interest of requiring 

candidates to show support across different geographical 

areas but does not dilute anyone’s voting power.30 Hence, it 

 

Walker, 54 P.3d 1069, 1095-96 (Utah 2002) (10% of voters 

from 20 of Utah’s 29 counties). 27 Anderson, 460 U.S. at 789. 28 See, e.g., Moore, 394 U.S. at 818 (considering the argument 

that “this law was designed to require statewide support for 

launching a new political party rather than support from a few 

localities”).

29 Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969).

30 Numerous courts have approved of such an approach. See, 

e.g., Angle v. Miller, 673 F.3d 1122, 1129 (9th Cir. 2012); 

Libertarian Party v. Bond, 764 F.2d 538, 544 (8th Cir. 1985); 

Libertarian Party of Virginia v. Davis, 766 F.2d 865, 868 (4th 

Cir. 1985) (abrogated on other grounds as recognized in Lux 

v. Judd, 651 F.3d 396 (4th Cir. 2011)).
14

is rarely, if ever, necessary to impose county-based signaturegathering requirements that significantly burden voting rights.

However, not all county-based signature-gathering 

requirements are sufficiently stringent to cause constitutional 

concern. As courts, beginning with a district court in Zautra 

v. Miller, have held, county-based signature-gathering 

requirements are constitutional when such requirements have 

no “real or appreciable impact upon the franchise . . ..”31 In 

Zautra, Utah required that “new political associations . . . 

secure the signatures of 500 registered voters, including at 

least ten signatures of registered voters from each of ten 

counties, in order to qualify as a political party with the 

accompanying right to place candidates on the ballot.”32 

Crucial to the finding that there was no appreciable impact 

was the fact that the number of signatures required from each 

county was only ten. Ten signatures from ten counties was 

small by any measure; for example, the district court 

observed that one hundred geographically distributed 

signatures in Utah amounted to only about one-ninth as many 

signatures per one million population as did the comparable 

requirement in Moore.

33 The ten-county requirement was 

also a lesser burden than the comparable requirement in 

Moore, and fulfilling the county-based signature-gathering 

requirement was not the only way to place a candidate’s name 

on the ballot in Utah (although it had been in Illinois in

Moore).34 Because of these considerations, Zautra held that 

the requirement was constitutional because it exerted no 

 31 348 F. Supp. 847, 850 (D. Utah 1972). 32 Id. at 848.

33 Id. at 849 & n.3.

34 Id. at 849-50.
15

appreciable impact on the franchise. While Zautra was 

decided before Anderson, it is consistent with the Anderson

analysis: If there is no appreciable impact on the franchise, 

then there is no injury to constitutional rights that the court 

must balance against a state’s interests. The state’s interests 

simply prevail.

Zautra illustrates the importance of considering the 

real-world impact of voting rights restrictions. This Court has 

also emphasized this point, noting that under Anderson,

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. When those rights are subjected to 

severe restrictions, the regulation must be 

narrowly drawn to advance a state interest of 

compelling importance. However, when a state 

election law provision imposes only reasonable,

nondiscriminatory restrictions upon the First 

and Fourteenth Amendment rights of voters, the 

State’s important regulatory interests are 

generally sufficient to justify the restrictions.35

Because this inquiry is concerned with the extent to 

which a challenged regulation actually burdens constitutional 

rights, this inquiry is “fact intensive.”36 It requires on-the-

 35 Belitskus, 343 F.3d at 643 (internal quotation marks, 

brackets, and citations omitted).

36 Patriot Party of Allegheny Cty. v. Allegheny Cty. Dep’t of 

Elections, 95 F.3d 253, 258 (3d Cir. 1996).
16

record analysis of the facts pertaining to the particular 

restriction under scrutiny. Such facts include the number of 

counties in the state at issue, the distribution of voters 

throughout those counties, and any other indications of the 

magnitude of vote dilution that will take place under the 

challenged restriction. A requirement that allows a minority 

of the population to thwart the majority’s will, as did the 

requirement in Moore,

37 certainly has an appreciable impact, 

but even lesser requirements may have an appreciable impact

depending on the factual circumstances surrounding the 

requirements.

C. The District Court’s Injunction

Under these standards, the District Court’s order must 

be vacated. We recognize that the District Court was working 

under significant time pressure; this Court issued its 

affirmance in June 2016 when the campaign season had 

already begun. As a result, the District Court needed to work 

as quickly as possible in order to provide fair relief to the 

parties. Nonetheless, the District Court did not make any 

factual findings or provide any explanation on the record of 

the factors it considered in determining that its injunction was 

appropriate. Because resolving vote dilution challenges is a 

fact intensive process and because county-based signaturegathering requirements have been held to be constitutional 

only when they have been shown to have no appreciable 

 37 If the 6.6% of the registered voters who lived in the leastpopulous counties in Illinois withheld their signatures, they 

could block candidates from being placed on the ballot. See

Moore, 394 U.S. at 819.
17

impact on the franchise, the lack of fact-finding requires that 

we vacate the District Court’s order.

The District Court may determine to enter the same 

order again—or to issue another injunction containing 

county-based signature-gathering requirements. However, 

the court must first conclude, after considering the factors and 

finding facts, that the restrictions are constitutional under 

Anderson. Given the justification for these requirements that 

the Commonwealth has presented,38 the District Court can 

impose the county-based signature-gathering requirements if 

it concludes that the requirements would have no appreciable 

impact on voting rights.39 The court did not so conclude here,

and we have no basis in the record to reach such a conclusion 

independently.

 38 The Commonwealth has suggested in its brief that the 

county-based signature-gathering requirements are necessary 

for a minor party to show “some modicum of support” before 

a minor party candidate can be placed on the ballot. 39 The Commonwealth observes that Pennsylvania state 

courts, citing Zautra, have held that the county-based 

signature-gathering requirements for major-party candidates 

are constitutional because they have no appreciable impact on 

the franchise. See Petition of Berg, 713 A.2d 1106, 1109 (Pa. 

1998); Cavanaugh v. Schaeffer, 444 A.2d 1308, 1311-12 (Pa. 

Commw. Ct. 1982). While the Commonwealth is correct that 

the state courts have so held, the requirements here involve 

two and one-half times as many signatures. Thus, even if the 

impact of the lesser requirements for major-party candidates 

is negligible—an issue not before this Court and one about 

which we express no opinion—the greater requirements here 

still must be analyzed separately.
18

III. Conclusion

For the foregoing reasons, we will vacate the District 

Court’s judgment and remand for further proceedings 

consistent with this opinion.