The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From yesterday's Pennsylvania Supreme Court opinion in Friends of Danny DeVito [no, not that Danny DeVito] v. Wolf:
Petitioners contend that the Executive Order violates the equal protection clauses of the United States and Pennsylvania Constitutions…. "[W]hile the Equal Protection Clause assures that all similarly situated persons are treated alike, it does not obligate the government to treat all persons identically."
Petitioners contend that the Executive Order prevents DeVito Committee from using its principle place of business for operations in running Mr. DeVito's political campaign. In contrast, they argue that elected officials, including the state representative against whom Mr. DeVito is running, are permitted to continue to use their offices, staff, equipment and supplies at their discretion. Mr. DeVito further contends that he is similarly situated to both his political opponent and social advocacy organizations in that they all advocate for social and political causes, but elected officials and social advocacy groups are identified in the Executive Order as life-sustaining and thus are not barred from their physical place of operations.
Campaign offices and legislative offices are not similarly situated. When legislators, like Mr. DeVito's political opponent, use their district offices, they do so as government officials, not as candidates. Indeed, it is a crime for public officials to use public resources—including taxpayer funded offices, staff, or equipment—to run for reelection. See e.g., 18 Pa.C.S. § 3926 (theft of services); 18 Pa.C.S. § 4113 (misapplication of government property); 65 Pa.C.S. § 1103 (conflict of interest). As the Respondents correctly note, while the legislative office of Mr. DeVito's opponent remains open, albeit without public visitations, its operations are limited to serving the public during this pandemic and to voting remotely on legislation. But all candidates' physical offices, whether incumbent or challenger, must be closed. The Executive Order thus does not advantage or disadvantage any candidate or campaign committee.
Furthermore, DeVito Committee is not similarly situated to social advocacy groups. Social advocacy groups advocate for vulnerable individuals during this time of disaster. While Mr. DeVito personally may similarly advocate for worthy social and political causes, there is no indication that DeVito Committee does so nor is it the primary focus of the operation.
To the contrary, in the Emergency Application, Petitioners alleged that DeVito Committee's political candidate committee was formed to operate and administer a political campaign, and to that end, its members meet with volunteers, supporters, potential media, vendors and other persons or parties instrumental to conducting a political campaign, as well as conducting direct mail activities, press conferences and other promotions.
Finally, [other] Petitioners indicate that Blueberry Hill [Public Golf Course & Lounge] is similarly situated to municipal golf courses, but that the Executive Order has closed public, but not municipal, golf courses. As Respondents properly indicate, however, the list of life-sustaining businesses makes no distinction between public and municipal golf courses. To the extent that municipal golf courses remained open because they were subject to local control, i.e., municipal governments, Respondent cites to a growing list of municipal golf courses that are closed by reason of efforts to mitigate COVID-19….
It seems to me that, in practice, the Executive Order does in effect "advantage … [incumbent] candidate[s]" over challengers: While the incumbent whom DeVito is challenging can't use her office for overt campaigning, much of what she does as a legislator can indirectly promote her campaign (for instance, by keeping her in the public eye). But I think the court is right that such a "disparate impact" claim isn't enough for an equal protection challenge.