                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 09-2227


         CHUCK BALDWIN; DARRELL R. CASTLE;
       WESLEY THOMPSON; JAMES E. PANYARD AND
      THE CONSTITUTION PARTY OF PENNSYLVANIA,

                                             Appellant

                                v.

PEDRO A. CORTES, Secretary of the Commonwealth of Pennsylvania,
                   in his official capacity


          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                     (D. C. No. 1-08-cv-01626)
             District Judge: Honorable Yvette Kane


            Submitted under Third Circuit LAR 34.1(a)
                     on November 10, 2009

       Before: AMBRO, GARTH and ROTH, Circuit Judges

                  (Opinion filed : May 6, 2010 )




                          OPINION
ROTH, Circuit Judge:

       Plaintiffs appeal the denial of declaratory and injunctive relief by the District

Court, which declined to order Pedro A. Cortes, Secretary of the Commonwealth of

Pennsylvania, to include plaintiffs’ names on the November 2008 presidential election

ballot. We will affirm.

                                              I.

       The Constitution Party is an alternative political party. In 2008, it nominated

Chuck Baldwin and Darrell Castle as its candidates for President and Vice President of

the United States, respectively.1 Because the Constitution Party is a “political body”

rather than a “political party,” as those terms are defined by Pennsylvania state law, it is

not entitled to nominate its candidates through Pennsylvania’s primary process. Its

candidates must file nomination papers in order for their names to appear on the general

election ballot. See 25 P.S. § 2831.2

       The nomination papers must contain a number of signatures equal to two percent

of the largest vote cast for any elected statewide candidate at the previous election. 25

P.S. § 2911(b). The parties agree that, for the 2008 election, the number of signatures


   1
    Appellants Wesley Thompson and James E. Panyard are members of the Constitution
Party and supported the Baldwin/Castle ticket in 2008. The complaint alleged that they
intended to vote for Baldwin/Castle. Compl. ¶ 12.
   2
    Pennsylvania law further classifies some political parties as “minor political parties”
based on voter registration. See 25 P.S. § 2872.2(a). Like those of political bodies,
candidates of minor political parties must file nomination papers in order to appear on
Pennsylvania’s election ballot. See id.

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needed to be placed on the ballot for President and Vice-President was 24,666. Compl. ¶

17; Appellee Br. 8.

       By statute, the deadline for filing nomination papers with the required signatures is

set for the “second Friday subsequent to the primary.” 25 P.S. § 2913(b). In 2008, this

date was May 2. However, pursuant to two consent decrees entered in federal court in

1984, the deadline was extended to August 1.3 App. 106, 108.

       On August 1, 2008, the Constitution Party submitted nominating papers containing

21,957 signatures. The papers were rejected by Pennsylvania’s Department of State as

containing too few signatures. On August 26, 2008, the Constitution Party attempted to

submit approximately 8,000 additional signatures, but the Department of State declined to

accept the filing because the August 1 deadline had passed.

       The Constitution Party, together with Baldwin, Castle, Thompson and Panyard,

filed a complaint and motion for preliminary injunction in the U.S. District Court for the

Middle District of Pennsylvania on August 29, 2008. The complaint named as the

defendant Pedro Cortes, Secretary of the Commonwealth of Pennsylvania, and alleged

that the August 1 deadline violated the U.S. Constitution because it was established by the

Secretary pursuant to the consent decrees, rather than by Pennsylvania’s legislature.

Compl. ¶ 26.



   3
   The cases resulting in the consent decrees were Hall v. Davis, No. 84-1057 (E. D. Pa.
June 14, 1984), and Libertarian Party of Pennsylvania v. Davis, No. 84-0262 (M. D. Pa.
June 13, 1984).

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       The District Court held a hearing on the motion for preliminary injunction on

September 10, 2008. Finding that the plaintiffs had not demonstrated a “likelihood of

success on the merits,” the District Court denied the motion on September 12, 2008.

       The plaintiffs filed a notice of appeal on October 3. The 2008 elections were duly

held without the Constitution Party’s candidates on the general election ballot. The

plaintiffs then filed a motion in this court on December 8 to voluntarily dismiss the

appeal. We granted the motion and dismissed the appeal pursuant to Fed. R. App. P. 42.

       Upon return to the District Court, the parties submitted a stipulation by which the

District Court’s order denying the motion for preliminary injunction was converted to an

entry of final judgment on March 24, 2009. The plaintiffs filed a renewed notice of

appeal.

                                             II.

       We first address whether the appeal is moot in light of the completion of the 2008

elections. Although the parties agree that it is not moot, we must nevertheless address the

issue 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)).

Obviously the passage of the 2008 elections has made it impossible for appellants to

receive the relief originally sought – placement of their candidates’ names on the 2008

general election ballot.

       A well-established exception to the mootness doctrine holds that we have



                                             4
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). The exception applies

when “(1) the challenged 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)).

       This case meets both criteria. The procedural history of the case demonstrates that

it could not have been fully litigated before the 2008 elections, which took place on

November 4. The appellants did voluntarily dismiss their earlier appeal from the District

Court’s denial of their motion for preliminary injunction, but only after the election date

had already passed without resolution of the appeal. Moreover, because the August 1

deadline remains in place and has been administered by the Secretary for every election

since the entry of the 1984 consent decrees, 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 one. The instant appeal thus presents a case which is “capable of repetition,

yet evading review.” We have jurisdiction to decide it.

                                              III.

       The Constitution provides that each state shall choose presidential electors “in

such Manner as the Legislature thereof may direct.” U.S. Const. art. II., § 1, cl. 2. See

McPherson v. Blacker, 146 U.S. 1, 27 (1892) (noting the Constitution “leaves it to the



                                               5
legislature exclusively to define the method” of appointing presidential electors). As

noted above, the statutory deadline for filing nomination papers is “the second Friday

subsequent to the primary,” 25 P.S. § 2913(b), and in 2008 that date was May 2.

Appellants argue that, because state legislatures have exclusive authority to determine the

manner by which electors are chosen, the Secretary of the Commonwealth violated the

Constitution by agreeing to the August 1 deadline in 1984 and enforcing it against the

appellants in 2008.

       There is no authority to support appellants’ position. Appellants rely primarily on

Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006 (S. D. Ohio 2008). Brunner

is not binding precedent, and we do not find it persuasive in light of the significant

differences between it and the case at bar.

       Unlike the Ohio Secretary of State in Brunner, here the Secretary of the

Commonwealth promulgated no new rule. Instead, the Secretary merely enforced a rule

that had been in place by court-approved consent decree since 1984. In Brunner, the Ohio

Secretary of State crafted an entirely new election-law regime to fill the void left by the

Sixth Circuit’s ruling in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.

2006); here, the Secretary of the Commonwealth simply applied the nearly 25-year-old

August 1 deadline. The Secretary performed his duty as an executive officer by applying

a rule that had become well established by 2008. It cannot fairly be said that, in doing so,

the Secretary acted in a legislative capacity or in any way usurped the legislature’s



                                              6
authority. Thus Brunner, even if legally correct on its own facts, is materially dissimilar

from the instant case.

       To the extent that appellants argue that the unconstitutional act was the Secretary’s

1984 entry into the consent decrees itself, the argument fails in light of the Pennsylvania

legislature’s explicit delegation of authority to the Secretary of the Commonwealth to

administer the state election scheme. See 25 P.S. § 2621. The appellants have not

demonstrated that the Secretary’s agreement to the consent decrees exceeded his statutory

delegated authority – particularly since the Pennsylvania Legislature has seen no need to

exercise what power it has (if any) to alter the deadline imposed by decree.

       Nor can appellants draw support from Bush v. Gore, 531 U.S. 98 (2000). The

majority per curiam opinion in Bush found that the recount ordered by the Florida

Supreme Court violated the Equal Protection Clause of the Fourteenth Amendment.

Appellants point to Chief Justice Rehnquist’s concurring opinion, which discussed Art. II,

§ 1, cl. 2, and emphasized the state legislature’s exclusive authority to define the method

of appointment of presidential electors. But it did so in order to express doubt regarding

the constitutional validity of the Florida Supreme Court’s recount order; it did not address

(let alone curtail) the state legislature’s authority to delegate administrative authority to an

executive officer. In fact, Chief Justice Rehnquist’s concurrence noted with apparent

approval the Florida legislature’s decision to “delegate[] the authority to run the elections

and to oversee election disputes to the Secretary of State.” Id. at 113-14. Nothing in



                                               7
Bush v. Gore suggests that the Secretary of the Commonwealth was powerless either to

adopt or to enforce the August 1 deadline.

       Finally, the Secretary aptly points out the self-defeating nature of appellants’

argument. The challenged action extended the time in which to submit a valid petition

with sufficient signatures, opening ballot access rather than restricting it. Plaintiffs now

seek relief that would make the nomination process more onerous for themselves and for

other candidates from minor political parties. We do not perceive any legal support for

this position. The District Court’s order of September 12, 2008, and its judgment of

March 24, 2009, will be affirmed.




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