Acosta v. Wolf

ORLANDO A. ACOSTA v. GOVERNOR TOM WOLF, et al.

CIVIL ACTION NO. 20-2528

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 10, 2020

MEMORANDUM

KEARNEY, J.

Philadelphian Orlando A. Acosta wants us to place him on the November 3, 2020 general election ballot as an independent candidate for the United States House of Representatives even though he may not secure the required 1,000 signatures of registered voters needed for his election petition by August 3, 2020. He pro se sues Pennsylvania Governor Tom Wolf and Secretary arguing enforcing Pennsylvania's election law requiring 1,000 signatures of registered voters deprives him of equal protection and violates the Americans with Disabilities Act of 1990 because COVID-19 mitigation and stay home orders (as well as a couple days of civil unrest concerning police actions towards African-Americans) impede his ability to presently acquire the 1,000 signatures on his petition not due until August 3, 2020. He filed here without paying the fees requiring us to screen his complaint for merit. Although we found his sworn statements of substantial expense with no income to be curious, we relied upon Mr. Acosta's sworn oath and granted leave to proceed in forma pauperis. Congress requires we now screen his case for merit before we cause the Marshal to effect service and the Defendants to respond.

Mr. Acosta does not state a claim for either depriving him of equal protection or discriminating against him in seeking employment due to a disability. We dismiss Mr. Acosta's complaint with leave to timely amend his complaint if he can do so consistent with the Law.

I. Alleged pro se facts.

Orlando A. Acosta alleges he cannot get the required 1,000 registered voters to sign his petition to appear on the ballot as an independent candidate for the United States House of Representatives election on November 3, 2020.¹ Under Pennsylvania Law, Mr. Acosta will not appear on the ballot as a candidate if he fails to collect 1,000 signatures by the filing deadline.² The petition must be submitted to the Secretary of the Commonwealth by August 3, 2020.

Mr. Acosta alleges he cannot collect the 1,000 signatures because of the emergency stay-at-home order issued by the Mayor of Philadelphia to mitigate the ongoing COVID-19 pandemic.³ With registered voters ordered to remain at home, Mr. Acosta pleads he cannot share his political platform with registered voters and have his petition signed.⁴ Even when the emergency stay-at-home order expires (as it did last week), Mr. Acosta alleges he still does not want to interact with registered voters because there is no vaccine for COVID-19 and his disability and asthma place him at a higher risk for contracting a severe coronavirus infection.⁵

Mr. Acosta asks us to order Pennsylvania Governor Wolf and Secretary Boockvar to exempt him from Pennsylvania's signature requirement and then place him on the November 3, 2020 general election ballot.⁶ He claims he is entitled to this extraordinary relief because the Pennsylvania signature requirement in light of COVID-19 mitigation and coupled with his preexisting medical conditions, violates the Equal Protection Clause of the Fourteenth Amendment and discriminates against him in his employment opportunities under the Americans with Disabilities Act of 1990.⁷

II. Analysis

Mr. Acosta sued without paying the required fees and then moved to proceed in forma pauperis under 28 U.S.C. § 1915. We granted him leave to proceed following review of his sworndeclaration of income and assets. Congress requires, upon granting him leave to proceed without paying the fees, we must screen his complaint for merit. If his claim lacks merit, we dismiss before causing the Clerk of Court to issue summons, the Marshal to effect service, and the defendants to incur costs and fees in responding. When considering whether to dismiss a complaint for failure to state a claim under § 1915(e)(2)(B)(ii), we use the same standard used under Federal Rule of Civil Procedure 12(b)(6).⁸ "'[A] complaint must contain sufficient factual allegations, taken as true, to 'state a claim to relief that is plausible on its face.'"⁹ "We accept all factual allegations in the complaint as true and construe those facts in the light most favorable to the plaintiff."¹⁰ We are directed by our Court of Appeals to be "mindful of our 'obligation to liberally construe a pro se litigant's pleadings ...'"¹¹

The issue is whether Mr. Acosta states a claim for equal protection and disabilities discrimination because he claims to be unable to access potential voters to sign his election petition. We begin by taking judicial notice of two facts concerning this year's election: Pennsylvania requires individuals seeking to appear on the ballot as a candidate for the United States House of Representatives to collect signatures from at least one thousand registered voters.¹² Candidates for this election cycle must submit the signed petition by August 3, 2020.¹³

Mr. Acosta's pro se complaint does not specify his relief under Federal Rule of Civil Procedure 8(a)(2).¹⁴ Under Rule 8(a)(2), Mr. Acosta does not need to provide detailed allegations, and as a pro se plaintiff we liberally construe Mr. Acosta's factual allegations as true and draw all reasonable inferences in his favor. While his allegations are scant at best, we can discern his argument and requested relief.

A. Mr. Acosta fails to state a claim under the Equal Protection Clause.

Mr. Acosta claims Pennsylvania Law requiring 1,000 signatures during the COVID-19 pandemic violates his equal protection rights.

The Equal Protection Clause of the Fourteenth Amendment demands, "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws."¹⁵ Mr. Acosta alleges the Governor and Secretary, by enforcing Pennsylvania Law, violate his right of "equal protection of the laws" by requiring him to collect 1,000 signatures to appear on the ballot as an independent candidate.¹⁶

To make a valid equal protection claim, Mr. Acosta must show "intentional discrimination."¹⁷ He does not identify a status or characteristic giving rise to discrimination. We do not know his political party. It is not enough for Mr. Acosta to allege he is discriminated against as an independent candidate.¹⁸ Even if his status as an independent candidate could give rise to a claim, Mr. Acosta must show his status as an independent candidate is a substantial factor for receiving different treatment.¹⁹

Mr. Acosta could apply three different standards to show "intentional discrimination" in his equal protection claim.²⁰ First, Mr. Acosta could allege the Commonwealth's signature-requirement statute "by its own terms" singles out independent candidates for different treatment.²¹ This standard does not apply to the present action, because Pennsylvania law at section 2872.1(12) does not "by its own terms" distinguish between party-affiliated and independent candidates. Second, Mr. Acosta could plead the statute makes no explicit or implicit reference to a classification but is "designed to impose different burdens on different classes of persons."²² This standard does not apply here because Mr. Acosta does not allege Pennsylvania law at section 2872.1(12) is designed to force burdens on one class of persons, independent candidates, differentfrom another class of persons, party-affiliated candidates. Or, third, Mr. Acosta could allege the statute makes no explicit or implicit reference to a classification but government officials administering the law apply it "with different degrees of severity to different groups of persons ... described by some suspect trait."²³ We infer Mr. Acosta seeks to proceed under the third standard.²⁴ Mr. Acosta alleges the emergency stay-at-home order issued by the Mayor of Philadelphia to mitigate the ongoing COVID-19 pandemic aims to stop his campaign as an independent candidate.²⁵

Once a plaintiff shows different treatment as the result of "intentional discrimination," our Court of Appeals binds us to determine the appropriate standard of review.²⁶ The first standard of review is strict scrutiny.²⁷ Strict scrutiny applies to classifications based on race, national origin, or religion.²⁸ Because Mr. Acosta does not allege a classification along these traits, strict scrutiny does not apply here.

The second standard of review is intermediate scrutiny.²⁹ Intermediate scrutiny applies when classifications are based on gender and illegitimacy.³⁰ Because Mr. Acosta does not allege "intentional discrimination" based on these traits, intermediate scrutiny does not apply to the present action.

The third standard of review is rational-basis review.³¹ All classifications not listed under strict or intermediate scrutiny are reviewed under this standard.³² Mr. Acosta's inferred classification— party affiliation—falls within the scope of the rational basis review.

We must now confront whether the "intentional discrimination" alleged by Mr. Acosta as an independent candidate is justifiable. Justifiable "intentional discrimination" exists where: first, the state has a legitimate interest in the issue raised by the plaintiff; and second, the state's interestadvances a rational governmental purpose.³³ If the state can succeed on both factors, then the plaintiff's equal protection claim fails.³⁴

First, the Commonwealth has a legitimate interest in regulating its elections, including who has access to the ballot as a candidate.³⁵ The Constitution mandates: "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall for be prescribed in each State by the Legislature thereof[.]"³⁶ The Commonwealth's signature-requirement statute reflects the state's valid interest to regulate the manner in which candidates qualify for elections.

Second, the Commonwealth's interest advances a rational governmental purpose. State regulation of elections is necessary "as a practical matter ......