Benezet Consulting LLC v. Secretary Commonwealth of PA

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2976
_____________
BENEZET CONSULTING LLC; TRENTON POOL;
CAROL LOVE,
Appellants
v.
SECRETARY COMMONWEALTH OF PENNSYLVANIA;
COMMISSIONER BUREAU OF COMMISIONS
ELECTIONS & LEGISLATION
________________
On Appeal from the United States District Court
for Middle District of Pennsylvania
(D.C. No. 1-16-cv-00074)
District Judge: Hon. Yvette Kane
________________
Argued on September 24, 2021
Before: MCKEE, RESTREPO, and ROTH, Circuit Judges.
(Opinion filed: February 24, 2022)
Lawrence M. Otter, Esq.
P.O. Box 575
Silverdale, PA 18962
Paul A. Rossi, Esq. [ARGUED]
IMPG Advocates Inc
316 Hill Street
Mountville, PA 17554
Counsel for Appellants
Howard G. Hopkirk, Esq.
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Claudia M. Tesoro, Esq. [ARGUED]
Office of Attorney General of Pennsylvania
1600 Arch Street,
Suite 300
Philadelphia, PA 19103
Counsel for Appellees
_________
OPINION OF THE COURT
_________
RESTREPO, Circuit Judge.
Appellants Benezet Consulting, LLC (“Benezet”) and Trenton Pool
2
(“Pool”) are out-of-state petition circulators.1 In this appeal, we must
decide whether an injunction enjoining Pennsylvania’s election
officials from enforcing the In-State Witness Requirement as to
Appellants Benezet and Pool should be made permanent and
extended to future elections beyond 2020. We hold that permanent
injunctive relief extended to all future elections is appropriate for
Appellant circulators only, not to all similarly situated individuals,
and only if Appellant circulators continue to submit to the
jurisdiction of the Commonwealth of Pennsylvania.
This matter originated in 2016 and challenged
Pennsylvania’s ban on out-of-state circulators for primary
election petitions. In 2020, the District Court found that the ban
was not facially unconstitutional, but it was unconstitutional as
applied to Benezet and Pool for the 2020 election only.
Appellants did not appeal the District Court’s conclusion that
the ban was not facially unconstitutional. After the District
Court declined to expand the injunctive relief to cover future
elections for Appellees and all similarly situated individuals,
this appeal followed.
1
In Pennsylvania, a candidate seeking to be placed on a major
political party’s ballot must obtain 2,000 signatures from
individuals who are both registered voters within the
Commonwealth and members of the candidate’s political
party. 25 P.S. §§ 2867 & 2872.1. A “circulator” is one who
obtains signatures for nomination petitions for a prospective
candidate. See id. § 2869.
3
The issue before us concerns a review of the scope of
injunctive relief rather than the substantive law applied.2 This
appeal boils down to one question: Is a permanent injunction
appropriate where relief is granted on an as-applied basis? We
must decide whether the District Court erred in denying
Benezet and Pool’s request to have the enjoinment of
Pennsylvania’s 25 P.S. § 2869 (the “In-State Witness
Requirement”), as applied to them, permanently extended to
all future elections and all similarly situated individuals.
Following a review of the record and oral argument, we vacate
the District Court’s order and hold that the injunctive relief
shall be applied permanently to Appellants Benezet and Pool
on the condition that the Appellant circulators submit to the
Commonwealth’s jurisdiction.
I. BACKGROUND
A. Factual Background.
Under Pennsylvania law, candidates seeking to be placed
on a major party’s ballot must obtain at least 2,000 signatures
on a nomination petition, and Section 2869 of the Pennsylvania
Election Code requires that any circulator of nomination
petitions be “a qualified elector of the Commonwealth, who is
duly registered and enrolled as a member of the party
2
The parties do not dispute the District Court’s finding that the
ban on out-of-state circulators is unconstitutional as applied to
Benezet and Pool during the 2020 election.
4
designated in said petition.”3 25 P.S. §§ 2867-2869. Appellant
Benezet is a Texas limited liability company, of which
Appellant Pool is the only member, and is involved in the
business of gathering signatures for political campaigns.
Benezet’s business specifically deals with “political
consulting, ballot access and signature gathering.” Pool is a
registered Republican in the state of Texas. Appellant Carol
Love (“Love”) is a registered Republican who resides in the
Commonwealth of Pennsylvania. Benezet took part in
signature-gathering efforts in Pennsylvania as part of the 2016
presidential election. In doing so, Benezet hired signature
gatherers as independent contractors. Benezet’s contractors are
paid on a per signature basis.
In 2016, Benezet entered a contract to gather signatures for:
(1) Ted Cruz for his candidacy for the 2016 Republican Party
nomination for United States president; (2) Donald Trump for
his candidacy for the 2016 Republican Party nomination for
United States president; and (3) Rocky De La Fuente for his
candidacy for both the Democratic Party nomination and as an
independent candidate for president. As a direct result of the
In-State Witness Requirement,4 Benezet is required to charge
3
This requirement does not apply if the petition “relates to
the nomination of a candidate for a court of common pleas,
for the Philadelphia Municipal Court or for justice of the
peace.” 25 P.S. § 2869.
4
25 P.S. § 2869 requires in part that the affidavit of circulator
for a nomination petition be executed by a person who is a
registered member of the party designated on the petition (such
5
candidates a higher rate per signature collected than in other
states because Pool “had to pay witnesses to work with his
professional circulators in Pennsylvania.” App. 12. The
requirement imposes additional problems for signature
collection drives because of tethered to witness availability.
Benezet had trouble “find[ing] enough witnesses to circulate
nomination petitions” in three out of five congressional
districts and the lack of Pennsylvania in-state witnesses caused
Cruz delegates not to make it onto the 2016 primary election
ballot. App. 12-13.
Benezet relies extensively on transient workers with no
fixed addresses. Generally, these companies use independent
contractors that are paid to travel from state-to-state placing
initiatives and candidates on ballots. Appellee Br. at 10.
Benezet claims it “would have brought in more circulators for
the 2016 presidential nomination petitions” were it not for the
In-State Witness Requirement. Appellant Br. at 11.
Love is a registered Republican from Pennsylvania and was
added as a plaintiff to Appellant’s Second Amended
Complaint. She has signed at least one nomination petition for
a local Republican candidate in Pennsylvania prior to 2016.
Love was allegedly willing to sign a nomination petition in
2016 and was expected to sign a petition that Benezet expected
to circulate. However, she was not afforded an opportunity to
do so because Benezet was not able to secure an in-state
witness to travel with Pool to Lancaster County, where Love
that out-of-state circulators must be accompanied by that
individual in circulating nomination petitions).
6
resides, to secure her signature on a nomination petition.
Appellants argue that the residency ban impairs Love’s right to
have Benezet’s out-of-state petition circulators reach out to her
and offer her to sign candidate petitions for her party’s primary
election. Appellant Br. at 9.
B. Procedural Background.
Benezet and Pool initiated this action on January 14, 2016
by filing a complaint against Appellees: (1) Pedro A. Cortes
(“Cortes”), in his official capacity as the Secretary of the
Commonwealth of Pennsylvania and, pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Appellants substituted
Cortes with Kathy Boockvar (“Boockvar”) after she was
appointed Secretary of State following Cortes’s resignation;
and, (2) Jonathan Marks (“Marks”), in his official capacity as
Commissioner for the Bureau of Commissions, Elections and
Legislation (referred to together herein as “Appellees”),
challenging specific provisions of Pennsylvania’s Election
Code (the “Election Code”), in connection with Pennsylvania’s
primary election for president of the United States. Appellants
filed a motion for temporary restraining order, which the
District Court denied on January 27, 2016. In Appellants’
second amended complaint, Appellants requested declaratory
and injunctive relief pursuant to 42 U.S.C. § 1983 and sought
to prohibit Pennsylvania state officials from enforcing the state
residency requirement for witnesses of nomination petition
circulation under Section 2869’s In-State Witness
Requirement. Count I, the facial challenge, and Count II, the
as-applied challenge, of Appellants’ second amended
7
complaint allege the In-State Witness Requirement violates the
First and Fourteenth Amendments to the United States
Constitution both facially and as applied to Appellants.
Adjudication of Counts I and III through X of Appellants’
second amended complaint are not the subject of this appeal.
Upon completion of discovery, the parties filed cross-
motions for summary judgment. On January 13, 2020, the
District Court issued an opinion granting in part, denying in
part Appellees and Appellants’ cross-motions for summary
judgment. The District Court held that Appellants’ claims were
justiciable and that Appellants have standing to pursue their
claims. The District Court found that the residency requirement
for circulators of nomination petitions was unconstitutional as
applied to Appellants. The District Court, however, limited
relief to just the circulation of nomination petitions by
Plaintiff-Appellants in the 2020 Republican presidential
primary. On February 10, 2020, pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, Appellants filed a motion to
amend or alter the judgment of the District Court requesting
that the as-applied relief be made permanent as to Appellants.
The District Court denied Appellants’ motion to amend the
judgment on August 28, 2020. Appellants timely filed a notice
of appeal on September 25, 2020.
Appellees did not contest the District Court’s adjudication
of the injunctive relief, only the extension of the injunction to
future elections. Accordingly, the only issue before this Court
is the extent of the as-applied relief granted on Count II of
Appellants’ second amended complaint.
8
II. JURISDICTION AND STANDARD OF
REVIEW
Our standard of review of a district court’s decision
granting a permanent injunction is an abuse of discretion.
N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d
464, 475 (3d Cir. 2011). “A district court abuses its discretion
if its decision rests on an incorrect legal standard, a clearly
erroneous factual finding, or a misapplication of the law to the
facts.” TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019).
A district court’s grant of an injunction pursuant to
Fed.R.Civ.P. 65(d) must create a remedy that is “no broader
than necessary to provide full relief to the aggrieved plaintiff.”
Belitskus v. Pizzingrilli, 343 F.3d 632, 649 (3d Cir. 2003)
(citing McLendon v. Continental Can Co., 908 F.2d 1171, 1182
(3d Cir.1990)).
We must also address mootness of the appeal in light of the
completion of the 2020 elections. Although there is no dispute
regarding the mootness, we must nevertheless address this
question to ensure that we have jurisdiction. See Whiting v.
Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (citing Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).
A well-established exception to the mootness doctrine
holds that we have jurisdiction to decide technically moot cases
which are “capable of repetition, yet evading review.” Rendell
v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007) (quotations
omitted). The exception applies when “(1) the challenged
9
action is, in its duration, too short to be fully litigated prior to
cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to
the same action again.” Id. (quoting Spencer v. Kemna, 523
U.S. 1, 17 (1998)) (quotations omitted).
This case meets both criteria. The procedural history of the
case demonstrates that it could not have been fully litigated
before the completion of the 2020 elections. Because 25 P.S. §
2869 remains in place, it is entirely likely that Appellants will
be subject to it in future election cycles, creating the same
controversy that took place in the most recent election. The
instant appeal thus presents a case that is “capable of repetition,
yet evading review.” We have jurisdiction to decide it.
III. DISCUSSION
Unlike facial relief, as-applied relief must contest a specific
application of a law. In general, “the distinction
between facial and as-applied challenges . . . . goes to the
breadth of the remedy employed by the Court.” Citizens United
v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010). That is,
“[a]n ‘as applied’ challenge is a claim that the operation of a
statute is unconstitutional in a particular case while
a facial challenge indicates that the statute may rarely or never
be constitutionally applied.” 16 C.J.S. Constitutional Law §
243; see also United States v. Huet, 665 F.3d 588, 600-01 (3d
Cir. 2012) (noting that an as-applied attack contends that the a
law is unconstitutional, not as written but rather in its
10
application to a specific person under specific
circumstances); United States v. Marcavage, 609 F.3d 264,
273 (3d Cir. 2010) (same). The Supreme Court has also
commented on the distinction, noting that as-applied relief
must be limited to the specific plaintiffs and circumstances of
the litigation. Doe v. Reed, 561 U.S. 186 (2010) (“Because
[the]… claim and the relief that would follow— an injunction
. . . — reach beyond the particular circumstances of these
plaintiffs, they must satisfy this Court's standards for a facial
challenge to the extent of that reach.”).5 However, there may
5
Our Sister Circuits have similarly noted this distinction. See
Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409,
425 (5th Cir. 2014) (“[T]o categorize a challenge as facial or
as-applied we look to see whether the ‘claim and the relief that
would follow . . . reach beyond the particular circumstances of
the [ ] plaintiffs.’ If so, regardless of how the challenge is
labeled by a plaintiff, ‘[t]hey must therefore satisfy our
standards for a facial challenge to the extent of that reach.’”)
(second and third alterations in original) (citation omitted)
(quoting Reed, 561 U.S. at 194); Disc. Tobacco City & Lottery,
Inc. v. United States, 674 F.3d 509, 522 (6th Cir. 2012) (“In
this case, Plaintiffs label their claims as both facial and as-
applied challenges to the Act, but because the ‘plaintiffs’ claim
and the relief that would follow . . . reach beyond the particular
circumstances of these plaintiffs,’ the claims that are raised are
properly reviewed as facial challenges to the Act.” (quoting
Reed, 561 U.S. at 194)); see also Am. Fed'n of State, Cnty. &
Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 862 (11th Cir.
2013) (“We look to the scope of the relief requested to
determine whether a challenge is facial or as-applied in
nature.”).
11
be instances when a court can exercise its powers to broaden
the scope of as-applied relief if the constitutional attack reveals
that a law is invalid “across the board.” Whole Woman's Health
v. Hellerstedt, 136 S. Ct. 2292, 2297 (2016); see also Citizens
United v. FEC, 558 U.S. 310, 333 (2010) (reasoning that in
“the exercise of its judicial responsibility” it may be “necessary
. . . for the Court to consider the facial validity” of a statute,
even though a facial challenge was not brought).
At oral argument, Appellants narrowed their request for
relief and asked this Court to extend injunctive relief to only
the named Appellants, not all similarly situated individuals.
Though this differs from what Appellants argued in their brief,
we agree that an extension of relief for Benezet and Pool is
appropriate so long as they submit to the jurisdiction of the
Commonwealth of Pennsylvania. Where the requested relief
pertains only to the appellant circulators themselves, the
circumstances—future election cycles included—are limited
enough to invoke as-applied relief so long as the Appellants
agree to submit to the jurisdiction of the Commonwealth of
Pennsylvania. As long as 25 P.S. § 2869 remains in effect and
Benezet and Pool submit to the jurisdiction of the
Commonwealth of Pennsylvania, the circumstances that were
in place at the time Appellants filed their complaint will remain
and duplicate at each election; Benezet and Pool will continue
to be repeatedly subject to the requirements of Section 2869
and eligible for injunctive relief. Limiting the injunctive relief
to the specific parties to this litigation honors the principles of
as-applied relief as set out by the Supreme Court in Doe v.
12
Reed, 561 U.S. 186 requiring as-applied relief be limited to the
specific plaintiffs and circumstances of the litigation.
While an extension of injunctive relief pertaining to
Benezet and Pool in future elections is appropriate here, the
same does not hold true for all similarly situated individuals.
The Appellants’ as-applied claims do not show that the 25 P.S.
§ 2869 is invalid as applied to all circulators, both in the last
election and future elections, covered by the statute at issue.6
Further, similarly situated individuals seeking to litigate
similar claims would require a factual record specific to each
plaintiff including, but not limited to, each individual
circulator’s submission to the jurisdiction of the
Commonwealth of Pennsylvania. As the District Court noted,
examining the merits of Plaintiffs’
First Amendment challenge to the
In-State Witness Requirement
requires the development of a
specific factual record on which
the Court may ascertain the ability
of the Commonwealth to further its
interest in preventing voter fraud
6
In fact, Appellants concede that “[o]ut-of-state circulators
unwilling to submit to the jurisdiction of the Commonwealth,
or who are not members of the same political party as the
candidate, are properly excluded from the court’s as-applied
injunctive relief from the residency requirement imposed on
circulators of nomination petitions by 25 P.S. § 2869.”
Appellant Br. at 16.
13
while ensuring that the First
Amendment rights of the
circulators are not impermissibly
infringed.
App. 58. Here, Appellants’ request for permanent relief for
themselves and all similarly situated individuals would go
beyond the specific plaintiffs and circumstances of this
litigation, and it would constitute facial relief. A factual record
specific to each similarly situated individual circulator will be
necessary to determine the appropriate relief in future
elections. Each individual circulator will need to demonstrate,
among other factors, their willingness to submit to the
jurisdiction of the Commonwealth for the purpose of
nomination circulation. We therefore decline to extend the
injunctive relief to all similarly situated out-of-state
circulators.
Appellants also request relief for Love. Love is not an out-
of-town circulator but rather a registered Republican and
Pennsylvania resident who, because of the In-State Witness
Requirement, was unable to sign a nomination petition that
Benezet expected to circulate in 2016. Appellants argue that
the Witness Requirement compromised Love’s First
Amendment right to receive the speech of out-of-town
circulators, including her co-appellants and similarly situated
individuals. While it is unclear whether or not Love has
standing in this matter, we need not address that question here;
the extension of injunctive relief to Benezet and Pool addresses
and effectively moots Love’s issues with respect to her co-
14
appellants. To the extent that Love is seeking to receive
nomination petition-related speech from her named co-
appellants during future election cycles, this Court’s extension
of the injunctive relief to Benezet and Pool will allow her to do
so without the impediments of Section 2869’s In-State Witness
Requirement, so long as her co-appellants submit to the
jurisdiction of the Commonwealth of Pennsylvania. To the
extent that Love seeks to receive nomination petition-related
speech from similarly situated out-of-state circulators, we
decline to extend such relief. Doing so would constitute facial
relief, which would be inappropriate here for reasons we have
already explained.
IV. CONCLUSION
For the foregoing reasons, we vacate and remand the order
to the District Court with direction to enter the permanent
injunction in favor of Appellants Benezet and Pool only, so
long as they agree to submit to the jurisdiction of the
Commonwealth of Pennsylvania.
15