67 Pa. Commw. 441 | Pa. Commw. Ct. | 1982
Memorandum Opinion and Order by
On June 10,1982 the caucus of City Committeemen of the Republican Party in the Second Congressional District (Respondents) filed a subsituted nomination certificate with the Secretary of the Commonwealth which purported to nominate State Senator T. Milton Street as the Republican candidate for Representative in Congress.
Any vacancy happening or existing after the date of the primary in any party nomination, by reason of the death or withdrawal of any candidate after nomination, or by reason of the death before or on the day of the primary election of a candidate for nomination who had received a plurality of votes of his party electors cast for the office for which he sought nomination, may be filled by a substituted nomination made by such committee as is authorized by the rules of the party to make nominations in the event of vacancies on the party ticket: Providing, however, That no substitute nomination certificate shall nominate any person who has already been nominated by any political party or by any other political body for the same office. (Emphasis added.)
In their answer to the petition before us, Respondents admit the critical factual averments but contend that the language of Section 979 emphasized in the excerpt above, is unconstitutional as applied to the circumstances of this case; more specifically, Respondents urge that that language in Section 979 violates the Fourteenth Amendment to the U.S. Constitution, U.S. Const, amend. XIV
In testimony offered at the hearing before this Court, it appears that the Republican Party is very much the minority party as far as registration is concerned in the Second Congressional District and that it has had that status for some considerable period of time. The registration majority of the Democratic Party exceeds 200,000. The history of past elections in the Congressional District, at least over the past three decades, indicates that a Republican has virtually no chance of being elected in the district as presently constituted.
It has been conceded by the Respondents at oral argument that if we find that Section 979 survives Respondents’ constitutional 'Challenges, the substitute nomination paper must be set aside since no other objection or answer to the petition to set aside has been made. Briefs have been received and oral argument heard from the parties before us. The Attorney General’s Office has been duly notified of the constitutional challenge and has filed a brief in support of the constitutionality of the statute here at issue.
Respondents have the heavy burden, of course, of rebutting the ¡strong presumption of the constitutionality of Section 979. Picariello v. Commonwealth, 54 Pa. Commonwealth Ct. 252, 421 A.2d 477 (1980). Both Petitioner and Respondents agree that Section 979 is part of Pennsylvania’s “anti-party-raiding” provisions in the Code. Krull v. City and County of Philadelphia, 2 D. & C.2d 181, aff’d, 382 Pa. 1, 114 A.2d 119 (1955). The purpose of anti-party raiding provisions is “to prevent the election ballot from being cluttered by candidates who are seeking to multiply the number of times their name appears on the ballot under various inviting labels.” Packrall v. Quail, 411 Pa. 555, 557, 192 A.2d 704, 706 (1963).
Respondents also point to In Re Nomination Payers of Smith, 494 Pa. 140, 430 A.2d 1156 (1981) which reversed without opinion the holding of this Court in the same case, reported at 60 Pa. Commonwealth Ct. 150, 431 A.2d 1096 (1981), in support of their contention that it is possible in a Pennsylvania election to have a nominee’s name on two lines on the ballot. Respondents acknowledge, as they must, that Smith was a “special election” case where no primary election was involved and therefore resort to Section 979 would have been improper. The case before us, of course, is not a special election case and does present circumstances where a primary election has already occurred. Thus, Smith is not controlling here.
Respondents next argue that Section 979 as applied here has the effect of harming minority parties because its alleged effect is 1) to make a coalition between the Republicans and a political body impossible and 2) to discourage candidates from seeking nominations because such a coalition is impossible. The merit of this argument escapes us. Nothing in Section 979 would prohibit the Republicans from joining with the “Milton Street Party” in promoting the candidacy of Senator Street. Nothing in Section 979 would prevent a prospective candidate from seeking to form a coalition of a political party with a political body to enhance his or her candidacy. Senator Street’s name will be on the ballot for Democrats, Republicans and all other qualified electors to vote in November. Neither he nor the Republican Party have been prevented in an unconstitutional manner from exercising their political or association privileges.
Respondents urge upon us the proposition that Section 979 unconstitutionally burdens minority par
In making an equal protection challenge, one must demonstrate in the first instance a discrimination of some substance. American Party of Texas v. White, 415 U.S. 767, 781 (1974). Respondents’ argument in the instant case is based upon illusory constitutional grounds, not substantive ones.
The major part of Respondents’ argument is based upon some federal district cases. Respondents contend that in United Ossining Party v. Hayduk, 357 F. Supp. 962 (S.D. N.Y. 1971), an election statute in New York similar to the one in Pennsylvania was struck down because the court found .that having a candidate’s name appearing on two lines rather than one was so advantageous that statutory language which would prohibit it restricts both voters and candidates. Respondents note also that in People’s Party v. Tucker, 347 F. Supp. 1 (M.D. Pa. 1972), the United States District Court for the Middle District of Pennsylvania cited Ossining with approval and struck down a provision of the Code which allowed but three weeks for a political party to obtain nominating signatures on the ground that such a requirement was unreasonable and violative of the First and Fourteenth Amendments.
As noted by Petitioner, there are substantial differences between the New York statute and our Code; specifically, the New York statute (a) permits cross-filing by candidates in the primaries by as many parties as the candidates desire to enlist and (b) permits defeated candidates to organize political bodies after the primaries. Such provisions, of course, do not prevail in Pennsylvania. We note further that People’s
In Williams v. Tucker, an excellent summary of the Pennsylvania election process is set forth. In that case, Section 951(e)(5) of the Code, 25 P.S. §2911(e) (5) was challenged on consitutional grounds. There are some similarities between the disputed language in Section 979 and that which appears in Section 951. That section requires that in each nominating paper filed by a political body, an affidavit must be appended which states, inter alia, that the candidate’s name listed thereon has not been presented as a candidate by nominating petitions for any public office at the ensuing primary and has not been nominated by any other nomination papers filed for any such office. The Court held that neither Section 951(e)(5) nor Sections 953(b) and (c), 25 P.S. 2913(b) and (c) violate the constitution “because they in effect prevent a candidate from having his name appear more than once on the general election ballot and permit a candidate to be the nominee of only one political group”. Id. at 387-388. In support of its conclusion, the court
The final case called to our attention by Respondents is Devane v. Touhey, 33 N.Y. 2d 48, 349 N.Y.S.2d 361, 304 N.E. 2d 229 (1973) where a New York Court held that the section of the New York election law which provided that a person nominated by a political party could not accept another nomination from an independent group, was unconstitutional because it discriminated between a candidate who was nominated by more than one political party and one who was nominated by a political party or a political organization and then, by virtue of the challenged statute, could not get his name on the ballot more than one time. The distinction between that case and the one before us now is obvious. Nothing in Section 979 discriminates between political parties and political bodies. A nominee from either one can have his or her name on the general election ballot — but it may appear there just one time, regardless of whether the person was nominated by a political party or a political body.
In summary, our close examination of the briefs of counsel and our considerfation of the evidence presented to us leads us to the conclusion that Respondents have fallen far short of meeting their heavy burden to overcome the presumption of the constitutional validity of Section 979.
It is ordered that the petition of William H. Gray, III to set aside the substituted nomination certificate filed by the duly constituted caucus of the Republican Oity Committeemen of the Second Congressional District be and the same is granted. The Secretary of the Commonwealth is directed not to certify the name of T. Milton Street as a candidate of the Republican Party for the office of Representative of Congress for the Second Congressional District. v
The candidate nominated by the Republican Party in the primary election has withdrawn.
The petition was filed by William H. Gray, III, the duly nominated candidate of the Democratic Party for Representative in Congress representing the Second Congressional District (Petitioner).
In their brief, Respondents also contend that the disputed language of Section 979 impinges upon their rights under the First Amendment to the U.S. Constitution, U.S. Const, amend. I.
It is also noted that the issue of whether a candidate’s name may appear twice on the ballot was not raised in Smith.
Senator Street did change Ms registration to Independent prior to the primary election in the instant case.