65 Pa. Commw. 620 | Pa. Commw. Ct. | 1982
Lead Opinion
Memorandum Opinion and Order by
Objections have been filed
A hearing was conducted in this matter on March 23, 1982, at which time the candidate’s counsel conceded that more than 100 valid signatures were obtained from only four counties.
The candidate points to the holding of the U.S. Supreme Court in Moore v. Ogilvie, 394 U.S. 814 (1969), to support his contention. It was held there' that an Illinois statute requiring independent candidates for nomination for President and Vice-President to obtain 200 signatures from each of 50 different counties was unconstitutional. The necessity for such geographic distribution was held in violation of' the “one person one vote” principle enunciated in Baker v. Carr, 369 U.S. 186 (1962) in that it gave voters in less populous counties a greater ability to nominate candidates than voters in more, densely populated counties and thereby impermissibly diluted the voting strength of the latter group.
In Wells, it was held that the “one person one vote” principle did not apply to a Louisiana statute which provided that each judicial district in the state would elect a supreme court justice, even though the relative populations of those districts were not comparable. The court in Wells decided, as have other courts, that judges need not be elected from districts which are of equal population, because judges are not representatives of the people and the voters do not have a right to equal allocation of judicial services. See also, Gilday v. Board of Elections of Hamilton County, 472 F.2d 214 (6th Cir. 1972); Concerned Citizens of Southern Ohio, Inc. v. Pine Creek Conservancy District, 473 F. Supp. 334 (S.D. Ohio 1977); Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 1972). The present case, however, does not involve an allegation of unequal representation of the electorate in judicial offices. It is premised upon the argument that 25 P.S. §2872(b) serves to dilute the voting power of the electorate who reside in more populous counties in choosing an official who is to be elected by voters in an at-large state primary. The real concern here is whether or not each voter in the state has the same influence in nominating a supreme court justice as each other voter.
In Holshouser, the court upheld a North Carolina law providing that judges were to be nominated by primaries in individual judicial districts, but that they
As to the merits of the constitutional challenge, the objector and the Commonwealth
In Elliott v. Shapp, the court held that 25 P.S. §2872(a) had an adverse effect on a fundamental right — i.e., the voting franchise — and determined that the rational relationship test was inappropriate. And, in reliance on Moore v. Ogilvie, the court refused to examine the degree of the impact imposed on the franchise and held that, where there was any showing of a dilution of voting rights, strict scrutiny of the relevant statute would be applied. We likewise believe that the strict scrutiny test, not the rational relationship test, should be applied here, because the statute here imposes a facial dilution of voting power. McCarthy v. Garrahy, 460 P. Supp. 1042 (D. R.I. 1978).
Even were we to examine the degree of impact on the voting franchise, to determine if it was de minimis, as the objector requests, we would be forced to conclude that 25 P.S. §2872(b) imposes a substantial dilution of the voting influence of the electorate in more populous counties. A review of the Pennsylvania Bureau of Elections ’ compilation of the number of registered voters for the November 1981 election,
Having determined that strict scrutiny of 25 P.S. §2872(b) is called for, we must still determine, of course, whether or not that section serves a compelling state interest which cannot be attained in any other manner. Elliott v. Shapp. Admittedly, there can be little dispute that the Commonwealth has some
. We must hold, therefore, that the Commonwealth’s interest as implemented by 25 P.S. §2872(b) is not compelling, that an alternative and constitutionally valid method to achieve legitimate state aims is available and that, consequently, the section of the Election Code here concerned cannot withstand evaluation under the strict scrutiny test.
Finally the Commonwealth argues that, under reapportionment cases, a greater disparity in population is allowed among state legislative districts than
For all of the reasons discussed above, we must hold that the geographic distribution requirement for signatures on nomination petitions contained in 25 P.S. §2872(b) is a violation of the “one person one vote ’ ’ principle and is consequently invalid under the equal protection clause.
Having so concluded, however, our resolution of this matter still requires that we now determine how many signatures the candidate here must produce in order to have his name placed on the Democratic primary ballot. In Elliott v. Shapp, the court found that a minimum of 1000 signatures was sufficient for candidates for nomination for President or for United
Order
And Now, this 6th day of April, 1982, upon consideration of the objections filed to the nomination petition of James R. Cavanaugh for the Democratic nomination for the office of justice of the Pennsylvania Supreme Court, it is ordered that said objec
The prothonotary is directed to notify forthwith the parties hereto of this order and to certify a copy thereof to the Secretary of the Commonwealth.
Order
And Now, this 12th day of April, 1982, it is ordered that this Court’s memorandum opinion in the above-captioned matter filed on April 6, 1982 be clarified by the amendment of the first full sentence on page 8 which shall now read: “For the sake of consistency among all candidates who are to be elected state-wide, therefore, whether for a state or federal office, we will use the rationale adopted in Elliott v. Shapp regarding candidates subject to the provisions of 25 P.S. §2872(a)
Order
And Now, April 20, 1982, the order of this Court entered April 6, 1982, dismissing the objections to the nomination petition of James E. Cavanaugh for the Democratic nomination for the office of Justice of the Pennsylvania Supreme Court is vacated. The Secretary of the Commonwealth is directed not to certify the name of James E. Cavanaugh to the proper officials for inclusion on the ballot of the Democratic Party primary election of May 18, 1982.
Opinion to follow.
The Prothonotary is directed to notify forthwith the parties hereto of this order and to certify a copy thereof to the Secretary of the Commonwealth.
April 22, 1982:
Objections have been filed
A hearing was conducted in this matter before Judge Genevieve Blatt on March 23, 1982, at which time the candidate’s counsel conceded that more than ' 100 valid signatures were obtained from only four counties.
The candidate points to the holding of the U.S. Supreme Court in Moore v. Ogilvie, 394 U.S. 814 (1969), to support his contention. It was held there that an Illinois statute requiring independent candidates for nomination for President and Vice-President to obtain 200 signatures from each of 50 different counties was unconstitutional. The necessity for such geographic distribution was held in violation of the “one person one vote” principle enunciated in Baker v. Carr, 369 U.S. 186 (1962) in that it gave voters in less populous counties a greater ability to nominate candidates than voters in more densely populated counties and thereby impermissibly diluted the voting strength of the latter group. The candidate also relies heavily on an unreported decision of the Federal District Court for the Eastern District of Pennsylvania, Elliott v. Bhapp, Civil Action No. 76-1277 (1979), which held Section 912(a) of the Pennsylvania Election Code, 25 P.S. §2872(a) to be unconstitutional because it requires candidates for President and United States Senator to obtain signatures of 100 registered voters from each of 10 counties.
Finally, prospective candidates not seeking nomination for a political party may, through the use of Section 951 of the Election Code, 25 P.S. §2911, obtain ballot access by getting signatures, without any geographic strictures, equal to two percent of the largest entire vote cast for any elected candidate in the state at large in the last statewide election.
With these facts in mind, we will proceed to examine the development of the equal protection clause as it applies to election cases. The first U.S. Supreme Court case to recognize an equal protection violation in county distribution requirements was Moore v. Ogilvie. In Moore, the Court was faced with a challenge by independent candidates for President to an Illinois law which required 25,000 signatures for attaining a position on the general election ballot, subject to a proviso that there be at least 200 signatures from each of 50 of the state’s 102 counties. The population disparity in Illinois was such that 93.4% of the population resided in the 49 most populous counties. The Court found such a scheme unconstitutional.
Our examination of the myriad of cases in this regard leads us to believe that the case of Zautra v. Miller, 348 F. Supp. 847 (1972) provides us with the proper method of analysis in regard to the distribution requirements here at issue. In Zautra, a statute in Utah requiring 500 signatures, with at least 10 signatures of registered voters from each of 10 of the state’s 29 counties, was challenged. The law only applied to groups who sought to qualify as a political party, and any individual could gain an independent spot on the ballot by gathering 300 signatures statewide without geographic restriction. The Court saw this statute as placing only a minimal burden upon prospective candidates, though in theory a disproportionate weight for certain voters did exist. The question, as phrased by the Court, was “whether the Fourteenth Amendment mandate [d] the elimination of even minimal geographic burdens of conceivably discriminating effect.” Id. at 850. The Court went on to conclude that in a case where the franchise was affected “somewhat obliquely” the guiding review standard was as enunciated in the case of Bullock v. Carter, 405 U.S. 134 (1972), where the Supreme Court enunciated a standard that a discriminatory law must have a real and appreciable impact on voters’ rights before- the strict scrutiny test of reasonable necessity
We likewise believe that the minimal signature requirement imposed, combined with the cross-filing or independent access available to condidates, has no “real and appreciable impact” on the franchise rights of voters in Pennsylvania and thus we find the state’s interests of ensuring serious candidacies, ensuring manageable ballot size, and ensuring that prospective candidates have a significant modicum of support provide a rational basis for the challenged law.
Further, the presently unanimous view of courts throughout the land provides yet another reason for
At issue in this case is the nomination petition for judicial office. “Manifestly, judges . . . are not representatives in the same sense as are legislators or the executive. Their function is to administer the law, not to espouse the cause of a particular constituency. ’ ’ Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964). The numerous courts which have been presented with judicial election cases are in rare unanimity on this point. Judicial officers are not subject to the one person-one vote principle and therefore a state’s choice regarding the method of electing its judiciary is not subject to an equal protection challenge.
As we have previously recognized, the one person-one vote provisions for nomination petition cases have ■followed, and relied upon, the reapportionment types of cases. See Moore v. Ogilvie. And in view of the fact that reapportionment has not been required in the judicial election process
We wish, finally, to emphasize two other problems which would attend a holding of unconstitutionality. First of all there is the matter of this candidate being placed on the present ballot. The objector, relying upon the law as it existed prior to this constitutional challenge, had no reason to assert challenges to any other signatures in light of the fact that there was stipulated that the candidate had only four
Secondly, we would like to point out a possible problem with a 500 signature statewide requirement. We have previously discussed the 2% statewide requirement for independent candidacies. And undoubtedly this requirement would generally pass constitutional muster, see Jenness v. Fortson, 403 U.S. 433 (1971). However, we perceive grave constitutional problems concerning the rationality of a system whereby prospective party candidates need only obtain 500 statewide signatures and independent candidates need 2% of the largest number of votes cast in the prior state election.
We therefore hold that the candidate has failed to sustain his heavy burden of showing that Section 912(b) is unconstitutional and will therefore order candidate Cavanaugh’s name not be certified.
The objections were filed by Forrest G. Schaeffer.
25 P.S. §2872(b) provides:
Number of signers required; nomination petitions of candidates at primaries shall be signed
(b) If for a State office to be filled by a vote of the electors of the State at large, for the office of delegate or alternate delegate at large to a National party convention, or for the office of member of the National committee, by at least one hundred registered and enrolled members of the proper party in ’each of at least five counties of the State.
The counties of Bucks, Lackawanna, Philadelphia and York.
The Court pointed out that the electorate in 49 counties representing 93.4% of the registered v.oters in Illinois could not nominate an independent candidate while 6.6% of the voters in the remaining 53 counties of that state could effect such a nomination.
That decision was not. appealed by the Commonwealth.
Tlie objector bas also argued that the candidate here has asserted the unconstitutionality of the statute in an untimely manner by raising this question as a defense to this objection to his nomination petitions. We are hard-pressed to imagine a more appropriate time t,o raise the issue.
A question was also raised as to the candidate’s standing to challenge the constitutionality of 25 P.S. §2872(b). We have, however, granted the motion of Thomas Darcy to intervene and, inasmuch as his status as a Democrat registered in the county of Philadelphia and as a circulator and signatory of the candidate’s nomination petitions subject, him directly to the dilution of voting influence concerned here, there can be no question that he would have standing to raise this constitutional issue. See William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975).
The Commonwealth through the Office of the Attorney General was made a party to this action, when it became apparent that ’ the constitutionality of a Commonwealth statute was being challenged.
We would note that even if we were to examine the dilution of voters’ influence among members of only the Democratic party, the nomination for which party is concerned here, the voting records indicate that the Democratic voters in the four counties with the highest Democratic registration (Allegheny, Luzerne, .Philadelphia and Westmoreland) account, for 47.6% of the total number of all registered Democrats in the state while the 5 counties with the lowest number of Democrats (Cameron, Forest, Fulton, Snyder and Sullivan) contain only .33% of the total. As is readily apparent, the dilution of voting influence for Democratic voters is even more severe than that for the general electorate.
Even the present state senatorial and state representative districts would provide more equitable voter population groups than do the 67 counties with their widely different populations.
In Mahan v. Howell, 410 U.S. 315 (1973), the Supreme Court permitted a 16.4% deviation among the populations of state legislative districts, although it has found a 3.3% deviation in the population of congressional districts to be impermissible. White v. Weiser, 412 U.S. 783 (1973).
We would note that, even were we to permit a greater degree of dilution of votes for state offices than for federal positions, we would nevertheless be forced to find that the amount of dilution here is far more serious than we would be able to permit.
Testimony at the hearing indicated that the forms prepared by the Department of State for the nomination for the office of United States Senator which position will be on the ballot for the 1982 election, provide that potential candidates need only obtain a total of 1000 valid signatures in order to have their names placed on the primary ballot.
Elliott v. Shapp involved 25 P.S. §2872(a) which governs the nomination of candidates for the offices of President and United States Senator, whereas 25 P.S. §2872(b) requires that persons seeking nomination for any state office which is to be elected statewide must obtain at least 100 valid signatures from each of 5 counties.
The candidate’s nomination petitions contained 1191 signatures which were not challenged.
The objections were filed by Forrest G. Schaeffer.
25 P.S. §2872(b) provides:
Number of signers required; nomination petitions of candidates at primaries shall be signed
(b) If for a State office to be filled by a vote of the electors of the State at large, for the office of delegate or alternate delegate at large to a National party convention, or for the office of member of the National committee, by at least one hundred registered and enrolled members of ■the proper party in each of at least five counties of the State.
The counties of Bucks, Lackawanna, Philadelphia and York.
That decision was not appealed by the Commonwealth.
In fact, the candidate here has filed nomination petitions for the Republican Party.
Though we do not intend to intimate agreement with the decision in MUott v. Shapp, we do note that the ten county requirement there could have resulted in the desires of roughly 60% of the voters being frustrated by the remaining 40%.
Even if we were to conclude that, strict scrutiny should be applied in every ease where the franchise suffers dilution, as was held in Elliott v. Shapp, we believe these asserted interests of seriousness, manageability and sufficient support would be sufficiently compelling t,o uphold the law. See American Party of Texas v. White, 415 U.S. 767 (1974) ; Lubin v. Panish, 415 U.S. 709 (1974) ; Jenness v. Fortson, 403 U.S. 431 (1971).
We would also note that this is a case involving a state election, not a federal office. And just as the one man-one vote principle came to be applied to federal reapportionment, in a much stricter fashion than it is applied in state reapportionment, compare White v. Weiser, 412 U.S. 783 (1973) (3.13% deviation in congressional reapportionment unconstitutional) .with Mahan v. Howell 410 U.S. 315 (1973) (16.4% deviation in state legislature reapportionment permitted), we believe that signature requirements in state elections should be given more leeway than have been, given federal ballot access eases, particularly since the ballot access cases rely upon the reapportionment cases for their legal foundations. See Moore v. Ogilvie.
Presuming, of course, that there has not been some sort of arbitrary, capricious, or invidious action in the choice of election method.
Wells v. Edwards is instructive on this point. There the State of Louisiana elected its seven Supreme Court Justices from seven different judicial districts, even though the relative populations of those districts were not comparable. Reapportionment was not required. We note further the disparity of population within the judicial districts of Pennsylvania which would necessarily be subject to a similar reapportionment challenge, should the one person-one vote rule be applied. '
The candidate has pointed to the dissent in the Supreme Court’s summary affirmance to Wells in an effort to show that the Supreme Court has not accepted the concept that judges are exempt from one man-one vote. But cf. Concerned Citizens of Southern Ohio v. Pine Creek Conservancy District, 429 U.S. 651 (1977) (Rehnquist, J., dissenting) on remand 473 F. Supp. 334 (S.D. Ohio 1977).
By our calculation, if only 30% of the 5.6 million registered voters had voted in the prior election, then 33,600 signatures would be needed by an independent candidate.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
For the reasons set forth in the Memorandum Opinion filed with the Order of April 6, 1982 in this case, I would continue to hold that the geographic distribution requirement of 25 P.S. §2872(b) is unconstitutional and that the name of James R. Cavanaugh should be placed on the Democratic ballot for the office of Justice of the Supreme Court of Pennsylvania for the primary election to be held on May 18,1982.