Openpittsburgh.org v. Voye

660 F.Supp.3d 421

OPENPITTSBURGH.ORG and Trenton Pool, Plaintiffs, v. David VOYE, in his official capacity asthe Manager of the Allegheny County Division of Elections, et al., Defendants.

2:16-cv-01075

United States District Court, W.D. Pennsylvania

Signed March 8, 2023

Lawrence M. Otter, Silverdale, PA, Paul A. Rossi, Pro Hac Vice, Mountville, PA, for Plaintiff Openpittsburgh.org.

Paul A. Rossi, Pro Hac Vice, Mountville, PA, for Plaintiff Trenton Pool.

Scott A. Bradley, Office of the Attorney General Litigation Section, Pittsburgh, PA, for Defendants Kathryn Boockvar.

Andrew F. Szefi, George M. Janocsko, Virginia Spencer Scott, Allegheny County Law Department, Pittsburgh, PA, for Defendant David Voye.

George M. Janocsko, Virginia Spencer Scott, Allegheny County Law Department, Pittsburgh, PA, for Defendants Kathryn M. Hens-Greco, Thomas Baker, Robert Palmosina.

OPINION

Mark R. Hornak, Chief United States District Judge

Before the Court is Plaintiffs' Motion to Convert Preliminary Injunction into a Permanent Injunction (ECF No. 160). For the reasons set forth below, the Court GRANTS Plaintiffs' Motion and will enter a permanent injunction against Defendants, but only on the terms and for the reasons set forth below. An appropriate Order will follow.

I. BACKGROUND

The parties are familiar with the lengthy procedural background of this case, so the Court recites it only as relevant here. Plaintiff¹ OpenPittsburgh.org is "an unincorporated grass-roots political organization" that has aimed to circulate petitions to place referendum questions on the City of Pittsburgh's general election ballots in elections that have taken place since this litigation began in 2016. (ECF No. 1 ¶ 15; ECF No. 86 ¶ 12.) Plaintiff filed a Complaint alleging a host of constitutional violations relating to Pennsylvania law's restrictions on the circulation of local referendum petitions. (See generally ECF No. 1.) Specifically, in the most recently amended version of Plaintiffs' Complaint, the Third Amended Complaint, Plaintiff challenged 53 Pa. C.S.A. § 2943(a) of the Pennsylvania Home Rule & Optional Plan Law ("HROP Law") to the extent it incorporates 25 P.S. § 2869 of the Pennsylvania Election Code on the issues of circulation, signing, filing, and adjudication of petitions to place a referendum question on Pittsburgh's 2016 general election ballot. (ECF No. 86 ¶ 1.) Plaintiffs challenged the constitutionality of these laws to the extent that they prohibit both unregistered Pennsylvania voters and non-Pennsylvanians from circulating referendum petitions under 53 Pa. C.S.A. § 2943(a).² (Id.)

Defendants are certain Allegheny County and Commonwealth of Pennsylvania officials: members of the Allegheny County Board of Elections and, at various points throughout the litigation, the Attorney General of the Commonwealth of Pennsylvania and the Acting Secretary of the Commonwealth of Pennsylvania.³ All have been sued in only their official capacities.

On August 9, 2016, this Court entered a preliminary injunction enjoining Allegheny County officials⁴ from invalidating referendum petitions on the basis that the circulator of the petition was neither (a) a resident of the Commonwealth of Pennsylvania nor (b) a registered elector of the Commonwealth of Pennsylvania. (See ECF No. 42.) Applying strict scrutiny, the Court concluded that Plaintiffs made a strong showing that the residency and registration requirements that had been imposed on such circulators violated the First Amendment as applied to the Plaintiffs and as to the involved ballot referendum issue. (See id. at 4, 6.)

On August 30, 2022, Plaintiffs filed the instant Motion (ECF No. 160) to convert that preliminary injunction into a permanent injunction and final Order of the Court, with a handful of proposed modifications as detailed below. On September 14, 2022, the Allegheny County Defendants ("County Defendants") filed their Response (ECF No. 162). Also on September 14, 2022, the Acting Secretary of the Commonwealth ("Commonwealth Defendants") filed its Response. (ECF No. 163). On October 2, 2022, Plaintiffs filed a Reply. (ECF No. 166). Thus, Plaintiffs' Motion for Permanent Injunction (ECF No. 160) is ripe for disposition.

II. LEGAL STANDARD

"In deciding whether to grant a permanent injunction, the district court must consider whether: (1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest." Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001).

III. DISCUSSION

a. Requested Modifications & the Parties' Respective Positions

i. Requested Modifications

First, Plaintiffs request that the named Defendants in the preliminary injunction be modified as collectively being enjoined as "Defendants." (ECF No. 160, at 1.) Second, Plaintiffs request that the permanent injunction specifically state that the Court retains jurisdiction over the action to monitor Defendants' compliance with the requested permanent injunction. (Id. at 1-2.) Third, Plaintiffs request an Order that "Defendants shall incorporate, print and provide on each Petition a section within the Statement of Circulator for out-of-state circulators to complete and execute an affirmation consistent with the terms of" the permanent injunction. (Id. at 2.) Fourth, Plaintiffs proposed several stylistic changes in keeping with "various changes in the law which have occurred since the preliminary injunction was entered into force." (Id.) For example, what was previously termed the "Affirmation of Circulator" is now statutorily denominated as the "Statement of Circulator." (Id.)

ii. County Defendants' Position

County Defendants state that they "have no interest one way or another about the substance of this litigation" because "the legal issue in this case always has been and remains the constitutionality of the form of nomination petitions mandated for use" by Pennsylvania's Election Code. (ECF No. 162 ¶¶ 1—3.) Specifically, according to County Defendants, § 2943(a) of the Commonwealth HROP Law sets forth the requirements for proposing a public referendum to amend the charter of a home rule unit of local government, of which Allegheny County is one, as is the City of Pittsburgh. (Id. ¶ 4.) Section 2943(a) states that the filing and adjudication of nomination petitions shall be subject to the Pennsylvania Election Code, over which County Defendants say they have no authority. (Id. ¶ 5-7.) Moreover, the County Defendants argue that Pennsylvania law "clearly establishes that the duties of a county board of elections under Pennsylvania Election Code are ministerial in nature and allow for no exercise of discretion regarding matters pertaining to the conduct of elections," so the "County Defendants, in their official capacities, simply implement the provisions set forth in Pennsylvania Election Code." (Id. ¶¶ 8-9.)

Thus, County Defendants "do not generally oppose" Plaintiffs' Motion for a permanent injunction. (Id. ¶ 11.) However, because in their view Pennsylvania law "exclusively vests the Secretary [of the Commonwealth] with the authority to determine the form of nomination petitions and papers . . . the County Defendants agree with the Plaintiffs that any final order in this case should also bind the Secretary." (Id. ¶ 13.)

However, the County Defendants do oppose particular aspects of Plaintiffs' requested relief. As to Plaintiffs' second requested modification, County Defendants oppose the inclusion of a provision in the permanent injunction ordering Defendants to incorporate a section on each petition for out-of-state circulators to complete and execute an affirmation. (Id. ¶ 15.) County Defendants argue that "there is no need to order [them] to do something that they have been doing for almost six years." (Id.)

As to Plaintiffs' third requested modification, County Defendants oppose the inclusion of a provision in the Order specifying that this Court retains jurisdiction to monitor compliance with its Orders and to resolve disputes. (Id. ¶ 16.) Retention of jurisdiction is unnecessary, they argue, because "no one has contended or alleged" that the 2016 preliminary injunction "has not been followed." (Id. ¶ 17.)

Finally, County Defendants do not comment on Plaintiffs' linguistic changes.

iii. Commonwealth Defendant's Position

The Acting Secretary of the Commonwealth opposes the "wording of the Order as proposed by Plaintiffs and opposes it to the extent that it seeks any relief against [him]." (ECF No. 163, at 4.) Generally, the Acting Secretary argues that "the Secretary has no involvement with respect to the referendum process at issue," which—according to the Acting Secretary—is "conducted entirely pursuant to the HROP Law." (Id. at 2 & n.1) Specifically, the Acting Secretary argues that, although Allegheny County's Home Rule Charter does incorporate the Election Code provisions with respect to nomination procedures, it does so entirely of its own volition. (Id.) There is no requirement in Pennsylvania law that Home Rule Charters incorporate Election Code provisions, and the Acting Secretary points to several counties operating under Home Rule charters which do not incorporate Election Code provisions. (Id.) Thus, in the Acting Secretary's view, it is not a provision of Pennsylvania Election law being challenged, but rather the Allegheny County Home Rule Charter that Allegheny County has chosen to adopt. (Id.)

Thus, because, in the Acting Secretary's view "[he] plays no role in the specific procedures by which Allegheny County receives and processes these petitions under the Home Rule Charter . . . the Order should clearly state that this responsibility and obligation falls on the County Defendants and their successors." (Id. at 4.) However, in the interest of resolving this litigation, the Acting...