Kenyatta Johnson v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4185
_____________
KENYATTA JOHNSON, Individually and as a 2008
Democratic Party Primary Candidate for State Representative
and Elector and on Behalf of All Citizens Within the 186th
Legislative District of All Citizens of Philadelphia;
DAMON K. ROBERTS, Individually and as a 2007
Democratic Party Candidate for a Philadelphia City Council
and Elector and on Behalf of All Citizens Within the Second
Councilmanic District and all Citizens of Philadelphia,
Appellants,
v.
CITY AND COUNTY OF PHILADELPHIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-08-cv-01748)
District Judge: Hon. James Knoll Gardner
_______________
Argued
November 8, 2011
Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.
(Filed: December 27, 2011)
_______________
Lawrence M. Otter [ARGUED]
422 Belmont Avenue
P. O. Box 2131
Doylestown, PA 18901
Counsel for Appellants
Craig R. Gottlieb [ARGUED]
Craig M. Straw
City of Philadelphia
Law Department
1515 Arch Street – 17th Fl.
Philadelphia, PA 19102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
2
JORDAN, Circuit Judge.
Kenyatta Johnson and Damon K. Roberts (collectively,
“Appellants”) appeal the District Court’s grant of summary
judgment for the City of Philadelphia (the “City”), contending
the District Court erroneously concluded that a City
ordinance prohibiting the posting of signs on street poles
passes constitutional muster under the First, Fourteenth, and
Twenty-Fourth Amendments of the United States
Constitution. For the reasons that follow, we will affirm.
I. Background
A. The Ordinance
Appellants challenge the constitutionality of a City
ordinance that prohibits the posting of signs on utility poles,
streetlights, sign posts, and trees in a public right-of-way.
Enacted after a similar ordinance was enjoined on First
Amendment grounds, 1 the ordinance now at issue was
designed to cure the earlier ordinance’s constitutional
infirmities (App. at 110; 118) and to promote public safety
and aesthetics in the City (see App. at 108-09 (testimony from
the Director of Legislative Affairs for the City’s Department
of Licenses and Inspections stating that signs are a “source of
blight” that “[a]side from being visually unattractive ... also
1
The prior ordinance was enjoined because it was
content-based and provided the City with unfettered
discretion in deciding which signs could be posted. See Bella
Vista United v. City of Phila., No. 04-1014, 2004 WL
825311, at *4-7 (E.D. Pa. Apr. 15, 2004).
3
present[] problems related to public safety, by causing
distractions for motorists operating vehicles”)).
Specifically, the present ordinance states that, except
as provided in accordance with a program permitting banners
under certain circumstances (the “Banner Program”), 2 no
person may post any “banners, pennants, placards, posters,
stickers, advertising flags, [or] plaques,” Philadelphia Code
§ 10-1201, on any “utility pole,” “streetlight,” “traffic or
parking sign or device, including any post to which such sign
or device is attached,” “historical marker,” or “City-owned
tree or tree in the public right-of-way,” id. § 10-1202(a)(1)-
(5). The ordinance further provides that any violating sign
“may be removed by the Department of Licenses &
Inspections or its designees,” id. § 10-1203(a), with the party
“responsible for the posting of [the] sign” bearing “the cost
incurred in [its] removal” as well as “a penalty of $75,” id.
§ 10-1203(b). The ordinance does not prohibit signs on
private property, or otherwise restrict communication.
B. Appellants’ Constitutional Challenge
At the time their actions were brought, Appellants
were both candidates for political office in an area of the City
that contains “a classic urban landscape of row house
2
The ordinance’s restrictions do not extend to the
posting of signs on “a streetlight provided the sign complies
with the requirements of the Banner Program, as defined by
regulations promulgated by the Department of Streets.”
Philadelphia Code § 10-1202(b). The Banner Program
permits high flying banners constructed of nylon or similar
material to hang atop City street poles.
4
neighborhoods, where most homes have no front yard.” 3
(App. at 56.) By their own description, Appellants had
relatively scarce resources to expend on their campaigns.
Johnson spent only $9,693.78 on his campaign, and Roberts
spent $14,698.00 with unpaid debts of $7,187.00. They assert
that, given their limited funds, they would have ordinarily
relied heavily on signs posted on street poles to spread their
political messages. 4 However, if they had done so, they each
faced the possibility of incurring significant fines because of
the City’s ordinance. Indeed, Johnson received a letter from
the City advising him that he must remove any signs placed in
contravention of the ordinance or “be billed for the cost
incurred for the removal plus a $75 penalty,” (App. at 71),
and Roberts, like several other political candidates and private
businesses responsible for violating the City’s ordinance,
received numerous tickets.
3
Roberts was an unsuccessful Democratic Party
primary candidate for Philadelphia City Council in the May
2007 primary. Johnson was a Democratic Party nominee for
State Representative in the 186th legislative district, and
ultimately won the primary and general election for that
position. Initially, Appellants brought separate civil actions
challenging the City’s ordinance. After permitting Johnson to
amend his complaint to add Roberts as a plaintiff, however,
the District Court consolidated the two cases and closed
Roberts’s separate action.
4
Johnson, for example, purchased 5,000 signs for his
campaign. Such signs were available for as little as $0.20 per
sign.
5
In support of their constitutional challenge, Appellants
submitted affidavits from Johnson and his campaign manager,
as well as a letter-report authored by Joe Long of the
Northampton County Democratic Committee. Long’s report
is fashioned as an expert opinion regarding the ordinance’s
impact on Appellants’ campaigns. It claims that the City’s
ordinance “totally bans one of the most effective campaign
tools – political signs,” which “eliminate[s] any chance of
electoral success” for candidates with limited resources,
inasmuch as political signs are inexpensive and “can be
localized in a fashion that no other medium offers.” (App. at
227b. 5) The affidavits are to the same effect, declaring that
street signs are an extremely effective campaign tool that
have no substitute.
C. The District Court Proceedings
After Johnson filed his initial complaint, he moved for
a preliminary injunction. The District Court referred the
motion to a Magistrate Judge, who held a hearing on the
motion and denied it, observing that “[t]he content-neutrality
of the challenged ordinance has been conceded” (App. at 47)
and deciding that Johnson was unlikely to succeed on the
5
The appendix contains pagination errors; it is
consecutively paginated from pages 1 to 233 at which point
the pagination reverts to page 224 before ending on page
237. Thus, there are duplicate pages in the appendix
numbered 224, 225, 226, 227, 228, 229, 230, 231, 232, and
233. For citation purposes, we have chosen to refer to the
first set of duplicate numbering as App. 224a to App. 233a,
and to the second set of duplicated numbering as App. 224b
to App. 233b.
6
merits. As noted supra note 3, Roberts was later added as a
plaintiff and his own civil action was consolidated with
Johnson’s. The City then moved for summary judgment,
which was granted. The District Court concluded that there
was no genuine issue of material fact and that the City was
entitled to judgment on Appellants’ claims.
This timely appeal followed.
II. Discussion 6
Appellants argue that the City’s ordinance violates the
First, Fourteenth, and Twenty-Fourth Amendments, and that
the District Court erred by concluding otherwise and granting
the City’s motion for summary judgment. We address those
contentions in turn.
6
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction over this appeal under
28 U.S.C. § 1291, and exercise “plenary review of [the]
district court’s grant of summary judgment.” Funk v. CIGNA
Grp. Life Ins., 648 F.3d 182, 190 (3d Cir. 2011).
Accordingly, we view the facts in Appellants’ favor to
determine whether the District Court correctly found that
“there [was] no genuine dispute as to any material fact and
[that the City was] entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Funk, 648 F.3d at 190 (“Summary
judgment is proper if there is no genuine issue of material fact
and if, viewing the facts in the light most favorable to the
non-moving party, the moving party is entitled to judgment as
a matter of law.” (citation omitted)).
7
A. Appellants’ First Amendment Claims 7
Appellants allege that the City’s ordinance violates the
First Amendment because it is a restriction on political
speech. See U.S. Const. amend. I (“Congress shall make no
law ... abridging the freedom of speech ... .”); Members of
City Council v. Taxpayers for Vincent, 466 U.S. 789, 792 n.2
(1984) (“Under the Fourteenth Amendment, city ordinances
are within the scope of [the First Amendment’s] limitation on
governmental authority.”).
1. Whether the Ordinance is Content
Neutral
The first step in assessing the First Amendment claims
is to determine whether the City’s ordinance is content-
neutral or content-based. Rappa v. New Castle Cnty., 18 F.3d
1043, 1053 (3d Cir. 1994). “If a [restriction on speech] is
content-based, then the [City] is required ‘to show that the
regulation is necessary to serve a compelling [government]
interest and that it is narrowly drawn to achieve that end.’”
Id. (quoting Boos v. Barry, 485 U.S. 312, 321 (1988) (internal
marks omitted)). If, however, a regulation is content-neutral,
a different, more lenient test applies. See id. at 1053-54.
Content-neutral ordinances, even if imposed “in a public
forum,” do not offend the First Amendment as long as the
restrictions (1) “are narrowly tailored to serve a significant
governmental interest”; and (2) “leave open ample alternative
7
Counts One and Two of Appellants’ complaint plead
two separate First Amendment claims in connection with
their challenge to the City’s ordinance. Because those claims
are essentially identical, we treat them collectively.
8
channels for communication of the information.” Id. at 1054
(quoting Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989)); see Melrose v. City of Pittsburgh, 613 F.3d 380, 388
(3d Cir. 2010) (same).
Here, resolving the threshold question of content
neutrality is straightforward. When asked at oral argument,
Appellants’ counsel acknowledged that the ordinance is
content-neutral. Although their briefing periodically implies
otherwise, 8 Appellants have conceded the point, and they
were wise to do so. We thus take the content-neutrality of the
ordinance as a given and turn to assess its constitutionality
under that rubric. Accordingly, we must consider whether the
ordinance is narrowly tailored to serve a significant
government interest and whether it leaves open ample
alternative channels for communication.
8
For example, Appellants’ briefing states that because
the ordinance “totally bans posting of political signs within
the public right of way,” it must be “subject to the highest
level of scrutiny that applies to the regulation of a public
forum.” (Appellants’ Br. at 13 (emphasis added).)
Appellants also suggest that the ordinance is content-based
because it favors commercial speech, given the opportunity
for such speech afforded by the Banner Program. However,
as the District Court correctly observed, the claim that the
Banner Program favors commercial speech is factually
unsupported. Moreover, the Banner Program is administered
separately, and Appellants – by their own representation at
oral argument – did not apply to participate in it. Therefore,
the assertion that the Banner Program favors commercial
speech cannot be credited in assessing the ordinance’s
constitutionality.
9
2. Whether the Ordinance is Narrowly
Tailored to Serve a Significant
Government Interest
i. The Asserted Government Interest
Appellants first argue that the City’s ordinance does
not serve a significant government interest. As a preliminary
matter, it is clear from Supreme Court precedent that “the
goals of ‘traffic safety and the appearance of the city[ ] are
substantial governmental goals.’” Riel v. City of Bradford,
485 F.3d 736, 751 (3d Cir. 2007) (quoting Metromedia, Inc.
v. City of San Diego, 453 U.S. 490, 507-08 (1981) (plurality
opinion)); see Taxpayers for Vincent, 466 U.S. at 805 (“It is
well settled that the state may legitimately exercise its police
powers to advance esthetic values”); Rappa, 18 F.3d at 1075
(“[T]he sufficiency of the government’s interest in aesthetics
and safety has, by this juncture, become unquestioned.”).
Here, as previously noted, the record indicates that the City’s
ordinance was intended to promote those legitimate and
significant values. (See App. at 109 (referring to blight and to
the safety of motorists).)
Nevertheless, citing our decision in Rappa v. New
Castle County, in which we held that a regulation prohibiting
campaign signs in public rights-of-way was an
unconstitutional content-based restriction on speech, 9
9
In Rappa, the plaintiff asserted a First Amendment
challenge after “a large number of [his political campaign]
signs along Delaware’s roadways” were “peremptorily
removed by state and local authorities on the grounds that
they were in violation of laws and ordinances enacted by the
10
Appellants argue that the City’s asserted interest in safety and
aesthetics “fails.” (Appellants’ Br. at 14-15.) Their argument
seems to be that there is no evidence supporting those
proffered considerations, particularly when the City “allows
banners to be posted [under the Banner Program] on the very
poles where it bans political signs.” (Appellants’ Br. at 24.)
To a large extent, then, Appellants’ contention that the City’s
ordinance does not serve a significant state interest depends
on the premise that the City’s ordinance targets political
signs. The legislation we struck down in Rappa did that, see
Rappa, 18 F.3d at 1047 (“Although Rappa’s [political] signs
were barred, a number of other types of signs ... were
permitted.”), and we rejected the government’s argument in
that case that the restriction on political signs was justified
due to the fact that “campaign signs tend to proliferate more
than other signs and therefore create greater safety and
aesthetic problems than other signs,” id. at 1070.
Here, however, unlike the disputed ordinance in
Rappa, the City’s ordinance is content-neutral – a point
which, as discussed earlier, Appellants have expressly
acknowledged. In other words, the City’s ordinance does not
simply prohibit political speech; it prohibits all speech in the
form of temporary signs on utility poles, streetlights, sign
posts, and trees in the public right-of-way, and there is no
evidence that it is selectively enforced or was crafted for the
purpose of prohibiting political speech in particular. Instead,
every indication in the record is that the ordinance was
intended to promote public safety and reduce blight. (See
App. at 109.) Under these circumstances, the City’s
States of Delaware ..., the County of New Castle ..., and the
City of Wilmington.” Rappa, 18 F.3d at 1047.
11
judgment that such goals are advanced by the ordinance is
accorded deference “unless [that judgment] is facially
unreasonable.” Frumer v. Cheltenham Twp., 709 F.2d 874,
877 (3d Cir. 1983) (citing Metromedia, 453 U.S. at 507-08).
Because we cannot say the City’s judgment fails that test, we
are bound to recognize that the ordinance advances
significant government interests. Id.
ii. The Scope of the Ordinance
That does not end our inquiry, however, as the
ordinance must be narrowly tailored to serve the City’s
interest in safety and aesthetics. Rappa, 18 F.3d at 1054. In
order to be narrowly tailored, a regulation “need not be the
least restrictive or least intrusive means of” furthering the
identified interest. Ward, 491 U.S. at 798. “Rather, the
requirement of narrow tailoring is satisfied ‘so long as the ...
regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.’”
Id. at 799 (citation omitted).
Appellants argue that the City’s ordinance is not
narrowly tailored because it “chose to solve its sign problem
... by the use of an unconstitutional sledge hammer” that
“banned all speech.” (Appellants’ Br. at 19.) The Supreme
Court’s decision in Members of City Council v. Taxpayers for
Vincent is instructive in assessing that contention. There, the
Court considered the constitutionality of an ordinance that
was, in all material respects, similar to the ordinance at issue
here. Most importantly, like the City’s ordinance, the
ordinance in Taxpayers for Vincent “prohibit[ed] the posting
of signs on public property,” 466 U.S. at 791, but not on
12
private property, see id. at 811. The Supreme Court held that
the Taxpayers for Vincent ordinance was narrowly tailored to
serve the interests of safety and aesthetics because it
“respond[ed] precisely to the substantive problem which
legitimately concern[ed] the City” and “curtail[ed] no more
speech than [was] necessary to accomplish its purpose.” Id.
at 810; see id. at 808 (“By banning these signs, the City did
no more than eliminate the exact source of the evil it sought
to remedy.”). Moreover, the Court in Taxpayers for Vincent
reached that conclusion even though the ordinance at issue –
like the present ordinance – was arguably of insufficient
scope to fully remedy the evil caused by signs in that it did
not ban signs on private property. See id. at 811 (“The
private citizen’s interest in controlling the use of his own
property justifies the disparate treatment.”).
The City’s ordinance in this case is, for all practical
purposes, indistinguishable from the ordinance upheld in
Taxpayers for Vincent as narrowly tailored to serve the same
interests as are implicated here. Thus, the City’s ordinance
can be said to “curtail[] no more speech than is necessary to
accomplish its purpose.” Id. at 810.
Appellants’ argument to the contrary appears to
depend on the belief that the City has “banned all speech.” 10
10
As discussed infra, Appellants’ position is further
undermined by their expert’s report, which is based on the
same mistaken belief. Long criticizes the ordinance’s impact
on low budget campaigns because “[t]here is absolutely no
reasonable or viable alternative for an individual to make his
political views known to his neighbor than the venerable
political poster in his or her front yard.” (App. at 227b
13
In reality, however, the ordinance does not ban all speech; it
bans only “signs,” and that ban extends only to certain
specifically defined portions of City property. 11 Moreover, it
can hardly be denied that the City’s interest would be more
difficult to achieve without the regulation, as the source of the
problem – the proliferation of signs – would otherwise be
permitted on City street poles. Accordingly, we conclude that
the City’s ordinance is narrowly tailored to serve the
government’s interests in safety and aesthetics.
3. Whether the Ordinance Leaves Open
Ample Alternative Channels of
Communication
Having determined that the City’s content-neutral
ordinance is narrowly tailored to serve a significant
governmental interest, we next examine whether it leaves
(emphasis added).) But, as Appellants have had to
acknowledge, the ordinance does not ban yard signs. Indeed,
over half of the 5,000 signs Johnson purchased were posted
on private property, including the windows of houses and
businesses.
11
As described above, the term “signs” includes
“banners, pennants, placards, posters, stickers, advertising
flags, and plaques.” Philadelphia Code § 10-1201. The ban
on signs extends to signs posted on any City “utility pole,”
“streetlight,” “traffic or parking sign or device, including any
post to which such sign or device is attached,” “historical
marker,” or “City-owned tree or tree in the public right-of-
way.” Id. § 10-1202(a)(1)-(5).
14
open ample alternative channels for communication. Rappa,
18 F.3d at 1054.
Appellants contend that the City’s ordinance does not
afford sufficient alternative channels because “political
posters have unique advantages including low cost and
convenience to achieve name recognition,” especially in
Philadelphia’s “gritty urban landscape with no front lawns.”
(Appellants’ Br. at 17, 20.) Underlying that line of reasoning
is the notion that Appellants should be afforded the
opportunity to speak in their preferred, most cost-effective,
medium. The law, however, provides no such entitlement.
See, e.g., Heffron v. Int’l Soc’y for Krishna Consciousness,
Inc., 452 U.S. 640, 647 (1981) (“[T]he First Amendment does
not guarantee the right to communicate one’s views at all
times and places or in any manner that may be desired.”).
Instead, “[t]he Supreme Court has required that an
alternative means of communication provide only a
‘reasonable opportunity’ for communication of the speaker’s
message.” Galena v. Leone, 638 F.3d 186, 203 (3d Cir.
2011). Accordingly, a speaker is not entitled to his or her
favored or most cost-effective mode of communication. See,
e.g., Mastrovincenzo v. City of N.Y., 435 F.3d 78, 101 (2d Cir.
2006) (“The requirement that ‘ample alternative channels’
exist does not imply that alternative channels must be perfect
substitutes for those channels denied to plaintiffs by the
regulation at hand ... .”). He or she must simply be afforded
the opportunity to “reach the ‘intended audience,’” Startzell v.
City of Phila., 533 F.3d 183, 202 (3d Cir. 2008) (citation
omitted), in an adequate manner, see Taxpayers for Vincent,
466 U.S. at 812 (“[A] restriction on expressive activity may
15
be invalid if the remaining modes of communication are
inadequate.”).
It is clear that the City’s ordinance allows ample
alternative avenues for communication. While the ordinance
in Taxpayers for Vincent – like the City’s ordinance –
prohibited the posting of signs on street poles, the Supreme
Court was satisfied with the district court’s finding that there
was nothing about “the posting of political posters on public
property [that is] a uniquely valuable or important mode of
communication.” 466 U.S. at 812. The Court relied on the
district court’s finding that the plaintiffs had several
alternative avenues for communication: “they remain[ed]
free to picket and parade, to distribute handbills, to carry
signs and to post their signs and handbills on their
automobiles and on private property with the permission of
the owners thereof.” Id. at 795.
Here, too, notwithstanding Appellants’ conclusory
pronouncements that there is simply no way to wage a low-
budget campaign in Philadelphia in compliance with the
City’s ordinance, the evidence demonstrates that there are
several other avenues of communication. Roberts and
Johnson themselves engaged in other means of
campaigning, 12 and, in Johnson’s case at least, it was
12
Johnson was featured in a South Philadelphia
newspaper at no cost to his campaign, had a campaign
website, and also conducted a series of radio advertisements.
Unfortunately, there is little-to-no information in the record
about Roberts’s means of campaigning, although it appears
that he expended campaign funds for printing signs and
running newspaper advertisements.
16
effective; he waged a successful campaign in spite of the
ordinance’s restrictions, winning both the Democratic
primary and the general election for State Representative.
Furthermore, the City’s ordinance has no bearing on a
candidate’s ability to enjoy what Appellants’ own expert
indicated is the single most effective communication
technique, namely, placing political posters on private
property. (See App. at 227b (“There is absolutely no
reasonable or viable alternative for an individual to make his
political views known to his neighbor than the venerable
political poster in his or her front yard.”).)
As Appellants evidently recognize, then, there is
tremendous value in being able to post political signs on
private property. Likewise, the Supreme Court has noted:
residential signs play an important part in
political campaigns, during which they are
displayed to signal the resident’s support for
particular candidates, parties, or causes. They
may not afford the same opportunities for
conveying complex ideas as do other media, but
residential signs have long been an important
and distinct medium of expression.
City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (internal
footnote omitted). We have likewise observed that “[p]osting
a sign on one’s own property may not only be easier and less
expensive than alternative means of communication, but may
be a unique means of self-expression for the property owner.”
Rappa, 18 F.3d at 1077. It bears emphasis, in this regard, that
over half of Johnson’s political posters were placed on private
property. Clearly, signs on private property are a valuable
17
and regularly utilized campaign tool that – at least when
combined with other avenues of communication – provide a
sufficient alternative to the sign-posting forbidden by the
City. Taxpayers for Vincent, 466 U.S. at 811-12.
Because the City’s ordinance is content-neutral,
narrowly tailored to serve a significant government interest,
and leaves open ample alternative channels for
communication, the District Court properly entered judgment
in the City’s favor on Appellants’ First Amendment claims.
B. Appellants’ Fourteenth Amendment and
Twenty-Fourth Amendment Claims
Appellants also argue that the District Court erred in
granting summary judgment against them on their Fourteenth
Amendment and Twenty-Fourth Amendment claims. 13
13
The City argues that Appellants have waived those
claims on appeal because they did not properly present them
in their statement of the issues or summary of the argument.
See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (“It
is well settled that if an appellant fails to comply with [the
requirement of setting forth an issue in the Statement of the
Issues and Argument sections], the appellant normally has
abandoned and waived that issue on appeal and it need not be
addressed by the court of appeals.”). While Appellants make
relatively little reference to the Fourteenth and Twenty-Fourth
Amendment arguments in their brief, we choose to consider
them because they do sufficiently appear in Appellants’
argument. Cf. id. (declining to address appellants’ arguments
where the issues were not set forth in either the issue
statement or “in the remainder of [the appellants’] brief”).
18
Their Fourteenth Amendment claim appears to be
based on the belief that the Banner Program favors
commercial speech over political speech and, therefore,
violates the Equal Protection Clause. As previously noted,
however, that factual contention is entirely unsupported by
the record. Appellants’ complaint acknowledges as much,
stating that “[Appellants] are not aware that any political
candidates ever used the so called ‘Banner Program’ as a
form of campaigning for political office,” (App. at 63), and
Appellants concede that they did not seek to participate in
that program. Accordingly, there is no genuine issue of
material fact for trial as to Appellants’ Fourteenth
Amendment claim. See Scott v. Harris, 550 U.S. 372, 380-81
(2007) (summary judgment should be granted when, viewing
the facts in the light most favorable to the non-moving party,
no reasonable jury could find for that party).
Appellants’ Twenty-Fourth Amendment claim is that
the City’s ordinance is an unlawful poll tax. 14 That too is
14
To support their claim, Appellants’ complaint cites
both the Twenty-Fourth Amendment and the Fourteenth
Amendment’s Equal Protection Clause. The Twenty-Fourth
Amendment provides that the “right of citizens of the United
States to vote in any primary or other election for President or
Vice President, ... or for Senator or Representative in
Congress, shall not be denied or abridged ... by reason of
failure to pay any poll tax or other tax.” U.S. Const. amend.
XXIV, § 1. The Equal Protection Clause, as Appellants’
employ it in this context, prohibits the state from “mak[ing]
the affluence of the voter or payment of any fee an electoral
19
without foundation. Conclusively, the Twenty-Fourth
Amendment, by its express terms, has no application to state
and local elections. See U.S. Const. amend. XXIV, § 1
(relating to the right to vote in certain federal elections).
Although Appellants point out that “Johnson’s posters are so
called coat tail items which advocated his election along with
now President Barrack [sic] Obama,” (Appellants’ Br. at 32),
the fact that Johnson’s signs included a picture of President
Obama does not make Johnson’s campaign a federal one to
which the Twenty-Fourth Amendment would apply. But
even if the Twenty-Fourth Amendment were applicable, the
City’s ordinance would not violate it because it does not
make any voter pay any fees to vote. It instead penalizes
anyone who fails to comply with its provisions. As the City
points out, Appellants “confuse the imposition of a poll tax ...
with the imposition of a penalty upon those who post signs on
poles.” (Appellee’s Br. at 33.) Because there is no evidence
that the City’s ordinance taxed voters or otherwise made voter
affluence an electoral standard, there is no issue for trial as to
Appellants’ Twenty-Fourth Amendment claim and the City is
entitled to judgment.
III. Conclusion
For the foregoing reasons, we will affirm the judgment
of the District Court.
standard.” Harper v. Virginia State Bd. of Elections, 383
U.S. 663, 666 (1966).
20