Patriot Party of Allegheny County v. Allegheny County Department of Elections

denied, Cir.1993), cert. (1994) 1064, 127 L.Ed.2d 384 is mis case,

placed. the court held that an panel’s

earlier determination that the FEC’s

position was unreasonable mandated an EAJA, award of fees under The FEC’s statute,

reading underlying of a on which the based,

litigation flatly was had contradicted plain language legislative

the statute’s

history. Id. at 386-87. This court had al

ready position held that the FEC’s was alto

gether bar, unreasonable. In the case at we prior panel

do not have a decision. More

importantly, dispute there is more room for inquiry

over the fact-based into consent that

was conducted this case than over the

interpretation unequivocal of the clear and

language of the statute at issue in Political

Contributions. Political Contribu controlling.

tions is not reviewing hearing

After the evidence and case, testimony in this the district court position

was the best to determine that the position substantially jus-

Government’s deny

tified. Its decision to claimant fees represent

under EAJA does not an abuse of

discretion.

The decision of the district court is af-

firmed.

PATRIOT PARTY OF ALLEGHENY

COUNTY

ALLEGHENY COUNTY DEPARTMENT ELECTIONS;

OF Mark Di Wolosik as Allegheny County Depart

rector of the Elections,

ment of

Allegheny County, Appellant.

No. 95-3385. Appeals,

United States Court of

Third Circuit.

Argued March 1996. Sept.

Decided 1996. Rehearing

Sur Petition for Nov.

254- (argued), Hitchcock

Cornish F. David C. Vladeek, Litigation Group, Citizen Public D.C., Siskind, Davis, Washington, Sarah E. Miner, Galland, WI, Madison, Barnhill & Weiler, Jr., Weiler, A. Jon- William Weiler & Robison, PA, Pittsburgh, athan B. Appel- for lant. Weiss, County Solicitor, Opsit- Allan

Ira J. Solicitor, (argued), County nick Assistant Of- County Allegheny Department, fice of Law PA, Pittsburgh, Appellees. GREENBERG, Before: ROTH and ROSENN, Judges. Circuit OF THE OPINION COURT ROTH, Judge. Circuit (“Par- County Allegheny ty”) alleges two election prevented nominating it from its laws have director, chosen for school viola- tion of the First and Fourteenth right of free well Amendment association as right equal as its Fourteenth laws, protection challenged laws. The of the 2936(e) 2911(e)(5), §§ 25 Pa. Ann. Stat. prevent political party from “cross- nominating” political candidate for office already nomi- when that candidate has been general the four another election for office November nated for same addition, four-year terms. In Mi- declaratory and in- seeks available party. sought § to 42 1983 chael the nomination junctive pursuant relief U.S.C. challenged two- major parties for one available enforcement both in future elections. year Although Eshenbaugh nomi- term. Party, his nated Democratic he lost hold sections We Republican bid for the nomination. Pa- Pennsylvania’s code violate'the and its Party’s right of free association triot Party Alleghe- July equal laws. The protection ny Pa. County, party, see 25 severely burden the Par- state election laws 2831(a)-(b) 2872.2, §§ nomi- Stat. Ann. and standard-bearer and ty’s right to choose its in nated candidates for school director four sup- political organization, without build its Allegheny Esh- the North School District. countervailing in- porting compelling Party enbaugh of the nomi- was one Patriot facially They also discriminate terest. nees, willingly accepted his nomina- and he sup- and their by Party. tion Two of the the sections judg- reverse porters. therefore We will Code, however, Pennsylvania the Pa- voided court, judgment enter for ment of the district Party’s Eshenbaugh, of triot nomination be- Party, case for the Patriot and remand the already sought cause had the nomination he opin- with this proceedings further consistent parties.1 major political By of the letter ion. 10, 1993, Wolosik, Di- August dated Mark properly asserted sub- The district court Allegheny County Department rector of the jurisdiction under ject matter 28 U.S.C. (“the Department”), explained of Elections 1343(3)-(4). jurisdic- We have §§ 1331 and previously that because had pursu- final the district court’s order tion of petitions seeking filed nomination the nomi- § 1291. ant to 28 U.S.C. major parties, Pennsylvania nations of the prohibited filing law him from nomination I. papers to run on ticket. Wol- dispute. are not in The facts this case 2936(e) § osik cited 25 Pa. Stat. Ann. as Pennsylvania explicitly Election Code ruling, noting authority for his -without offices, allows for certain local candidates 2911(e)(5) prevented Eshenbaugh’s § also director, by including to be nominated school candidacy. supra dual See note 1. major parties. Pa. Stat. Ann. both Party 2870(f). challenges constitu- Code, Patriot § to the several Pursuant 2936(e) tionality §§ Pa. of 25 Stat. Ann. Pennsylva- for director candidates school 2911(e)(5) prevent applied as this case to sought Allegheny North District nia’s School Eshenbaugh. Party nominating the nominations of both Democratic May parties agreed Because both the facts Republican 1993 munici- undisputed, primary. candidates nomi- were the district court treated pal Three were by Department’s both run in the motion to dismiss and the nated therein, (5) Party stating— party, As a minor the Patriot nated ... that his name 1. petitions” pri- does not file “nomination mary Instead, for the presented by has not been a candidate nom- elections, major political parties. as do the any petitions public for ination office to be Party, politi- other like Patriot election, ensuing primary voted for at the nor parties, papers” "nomination con- cal must file by any has been nominated other nomina- he signatures by taining specified number any papers tion filed for such office.... Pennsylvania § Pa. Stat. law. 25 Ann. apply sections of the election code above 2936(e) Pennsylvania pro- Section Code only papers” by "nomination to the filed paper filing “if the hibits of a nomination by petitions" and not "nomination filed filed a candidate named therein has nomination parties participating primaries. ensuing petition any public for office for the 2870(f) § while elec- primary, or nominated for such has been ” expressly major parties tion allows code by papers previously office Furthermore, filed.... nomination director, cross-nominate candidates for school 2911(e)(5) requires § 2911(e)(5) 2936(e) [tjhere §§ cross- such appended shall to each nomination paper by ... an each nomi- affidavit of nomination Party’s summary judg winning Patriot motion for and who has succeeded the nomi summary judg ment as cross-motions parties.” nation of one of those Patriot Par Party Allegheny ment. Coun ty, filed, See slip op. at 5. Since this case was Wolosik, ty Dep’t Elections & Mark No. has also (W.D. slip op. at 2 n. 1 Pa. June Department’s reject Party’s decision to 1995) (hereinafter Party). The dis cross-nomination of a candidate who was trict court denied the Patriot free nominated both the Democratic and Re claims, equal protection association and hold publican parties. See Patriot Alle ing legitimate state’s interest Wolosik, gheny County v. Civ. No. 95-1175 justified regulating its ballot the restraints (W.D.Pa.). Although controversy latter placed par that the election code on minor scenario, differs from our factual it indicates Party, slip op. ties. Patriot the likelihood that cross-nominations third parties will continue to vex the Our review of the district court’s Department of Elections and the courts. grant summary judgment plenary. Dist., Wheeler v. Towanda Area School Because politi- cross-nominations minor (3d Cir.1991); F.2d Public Interest prohibited by are still the Penn- N.J., Group Research Inc. v. laws, Powell sylvania capable election ease is Duf Terminals, Inc., (3d 64,

fryn 71 913 F.2d repetition, yet evading review. Norman v. Cir.1990), denied, 1109, Reed, cert. 498 111 U.S. 279, 287-88, 698, 502 112 U.S. S.Ct. (1991). 1018, (1992) S.Ct. 112 L.Ed.2d 1100 704-05, We (citing 116 L.Ed.2d 711 Moore apply the same test the district should 816, court Ogilvie, 814, 1493, v. 394 U.S. 89 S.Ct. applied initially. have 1494-95, (1969)). Goodman v. Mead 23 1 L.Ed.2d There is “ev- Co., (3d 566, Johnson & 534 F.2d 573 Cir. ery expect reason to the same denied, 1976), 1038, cert. 429 U.S. 97 S.Ct. similar, generate a controversy future sub- (1977). 732, 50 L.Ed.2d 748 ject to identical time constraints....” Id. justicia- We hold therefore that this case is

II. ble. reaching Before the merits of the Pa III. Freedom of Association Party’s challenge,

triot we must determine controversy justiciable. whether this is Esh power regu States have broad enbaugh, running on the Democratic ticket time, elections, place, late the and manner of only, two-year vacancy won the term but do must so within the limits estab school director the November 1993 elec by lished the First and Fourteenth Amend Party, slip op. tion. Patriot at 3 n. 3. As a ments to the U.S. Constitution. Eu v. San result, we must ensure that this case has not Comm., County Francisco Democratic Cent. by been mooted the fact that the election 214, 222, 1013, 1019-20, 489 U.S. 109 S.Ct. question place has taken Eshen (1989). protection 103 L.Ed.2d 271 baugh’s success in that “An election. action the First and Amendments ex Fourteenth ‘(1) becomes moot when there is no reason partisan political organizations tends to expectation alleged able that the events will 224, 109 well as to individuals. Id. at S.Ct. at (2) recur ... and interim relief or events (“It partisan political 1020 well settled completely have eradicated the effects organizations enjoy fi-eedom of association Assoc., violation.’” v. Zellous Broadhead protected by the First and Fourteenth (3d Cir.1990) 94, 100 (quoting 906 F.2d Ames Amendments”) (citing Tashjian Republi v. 289, Westinghouse Corp., v. Electric 864 F.2d Connecticut, 208, 217, can 479 U.S. (3d Cir.1988)). 291-92 544, 550, (1986); 107 S.Ct. 93 L.Ed.2d 514 Burns, 347, 357,

Although the 1993 election has come and Elrod v. 427 U.S. 96 S.Ct. (1976) 2673, 2681-82, gone, (plurali the district court found that 49 L.Ed.2d 547 “[i]f so, permitted Party] ty opinion)). party, were [the to do such as who, Party, may challenge regu would nominate a candidate like Mr. Eshenbaugh, sought allegedly has the nomination lations that burden its fundamental primary major parties both constitutional to freedom of association.

258 1013; strength of the 214, only legitimacy See, Eu, e.g., 489 U.S. interests, necessity proffered but the 208, 107 state’s Tashjian, 479 U.S. S.Ct. rights in order to burdening plaintiffs precedent explicit dispositive Although no Anderson, 460 U.S. protect those interests. cross-nomination, a number of ly discusses 789, If 103 the burden S.Ct. upon touch decisions severe, plaintiffs rights is state’s .the cases set political parties. These rights of compelling and the law must must be interest analyzing consti general framework for out a in narrowly to serve the state’s tailored laws. challenges to state election tutional Norman, 289, 112 502 U.S. at S.Ct. terests. Norman, 112 S.Ct. at 502 U.S. at Eu, 222, 705-06; 109 S.Ct. at Celebrezze, 704-06; v. Anderson 1019-20; see also Twin Cities Area New 1564, 1569-70, 780, 788, 103 75 L.Ed.2d S.Ct. (8th 196, McKenna, 198 Party v. 73 F.3d (1983). applies a generally 547 The Court -, Cir.1996), granted, 116 cert. - U.S. balancing weighs fact intensive test (1996); Swamp 134 L.Ed.2d 947 S.Ct. places law on a burden that the state election (7th Cir.1991), Kennedy, 950 F.2d 385 party against the state’s asserted denied, cert. justification for the law. (1992).2 proceed, there 120 L.Ed.2d We fore, by examining the that the first burden a state elec To determine whether place challenged Pennsylvania election laws Constitution, the U.S. we tion law violates rights. on the Patriot constitutional challenged law whether first examine justification that then consider the Penn We rights protected the First and burdens proffered imposi sylvania has Eu, 489 U.S. at Fourteenth Amendments. tion of this burden. 1019-20. If the law does gauge rights, we must protected burden Party A. Burden on magnitude burden on character and of the impor Party alleges that plaintiff weigh it The Patriot State’s and par- proffers prohibition of cross-nomination the interests that the state tance of Norman, infringes upon and at ties its First Fourteenth justify the burden. 502 U.S. 704-06; Anderson, 288-89, association in two at 460 Amendment of free 112 S.Ct. First, 789, ways. prevents the restriction 103 S.Ct. at 1570. We examine U.S. at Times, (authorizing prescribe "[t]he in Eu that it would invali states 2. The Court indicated holding of Elections for Sen- any the funda Places and Manner date election law that burdened Brown, Representatives”); and Storer rights ators v. of mental constitutional 724, 729-30, 1274, 1278-79, members, 415 U.S. 94 S.Ct. 39 narrowly the law was and their unless (1974). 714 The Court noted in Storer L.Ed.2d compelling a interest. to advance state tailored 222, (citing at 1019-20 489 U.S. at 109 S.Ct. matter, practical must a substan- however, as a there contexts, cases). the Court In other they regulation are tial of elections if to be fair straightforward balancing applied has a more order, and honest and if some sort of rather test, requiring a the state to demonstrate "com chaos, accompany the democratic than policy "severely pelling only interest” when state event, processes. In the States have rights. political party’s fundamental burdens” a comprehensive, many respects evolved and Takushi, 428, 433-34, 112 Burdick v. 504 U.S. complex, regulating [federal codes and 2063-64, 2059, (1992); 119 L.Ed.2d 245 S.Ct. elections], registration qualifica- 1570; Anderson, 789, at S.Ct. at 460 U.S. 103 voters, qualifica- of and the selection and tions Norman, 288-89, S.Ct. at 704- 502 U.S. at 112 tion of candidates. Cities, 06; also Twin 73 F.3d at 198. see very unlikely large or even a It is that all Anderson, example, that "the for the Court noted portion of the state election laws would fail general important regulatory interests are state's pass cases.... muster under our reasonable, justify ly nondiscrimina sufficient 415 U.S. at 94 S.Ct. at 1279. A law must be tory at 460 U.S. at 103 S.Ct. restrictions.” narrowly justified by compelling a tailored and omitted). (footnote 1570 only imposes a severe burden state interest if it See, Burdick, may constitutionally political party's rights. e.g., im It is clear that states on a 433-34, pro pose requirements to ensure that elections at De- 504 U.S. at 2063-64. See, Eu, orderly e.g., language may spite a state ceed in an and honest fashion. the broad of reasonable, I, 2, nondiscriminatoiy (authorizing implement § elec- states to U.S. Const. art. cl. 1 regulations meeting stringent voting such a qualifications tion without determine of individuals I, elections); § congressional id. art. cl. 1 standard. association, Party nominating speech the standard bearer burdened from free and free Party effectively scrutiny only who the thinks will “most could survive constitutional if it program platform.” compelling governmental [its] advance Sec- served interest. ond, deprive 225, 109 election laws Id. at S.Ct. at 1021. Party opportunity of an to “fuse” its Tashjian Republican Party Dicta from v. of a

votes with those and there- Connecticut also indicates that of political process. inroads into the to make protected selecting have interest in alleged consider these burdens in turn. We candidates, their own if even the nominee is not a explained: member. The Court prevents “antifusion statute” that An nominating political party its candi provide only Were the State to ... political party’s date of choice burdens a members be selected as the rights. First and Fourteenth Amendment Party’s office, public chosen nominees for recognized has prohibition potential such a association “[fjreedom encompasses of association also clearly with infringe nonmembers would political party’s identity decisions about the upon Party’s members of, process electing, and the for its leaders.” organize under the First Amendment to Eu, 230, 109 (citing 489 U.S. S.Ct. at 1023 in support with like-minded citizens Wisconsin, Democratic the U.S. v. political goals. common 107, 123-24, 101 1010, 1019-20, S.Ct. 215, 107 549; also S.Ct. see id. (1981) (State 67 L.Ed.2d 82 cannot dictate (Scalia, J., at 559-50 process selecting delegates to national (“Nor dissenting) any question is there convention) Wigoda, Cousins restricting ability Party’s members (1975) 42 L.Ed.2d 595 desire”). to select whatever candidate (State may cannot dictate who sit as conven Like the state election laws Eu and delegate)). tion In Eu v. San Francisco hypothetical Tashjian, restriction in Comm., County Democratic Cent. for exam prohibit political election laws ple, constitutionality the Court reviewed the associating with its candidate of that, alia, of California election laws inter choice. was the Patriot prohibited governing bodies various bearer, willing chosen standard and he was officially endorsing from can Party’s to serve candidate. Neverthe party primaries. didates their own 489 less, Pennsylvania’s election laws denied the 216, U.S. at 109 at S.Ct. 1016. The Court Party right By deny to him. nominate stated that ing Party right to choose its [fjreedom only not association means bearer, standard election right that an individual voter has the Party’s right laws burdened the of free asso political party with associate of her Eu, 229-30, ciation. 489 See U.S. 109 choice, political party ... but also that a (citing Party S.Ct. at 1023-24 Democratic right “identify people has a who U.S., 101 S.Ct. at association,” constitute the ... and to se- Cousins, 477, 1019-20 and repre- lect a “standard bearer who best 541); 215, 107 Tashjian, 479 U.S. at S.Ct. at party’s ideologies prefer- sents ences.” 224, (emphasis Id. at 109 S.Ct. 1020-21 The fact that the state election law added) (citations omitted). recog prevented Party case from Court this nominating only nized the State’s ban on endorsement a handful of candidates (those party leadership “clearly already sought nomina a restraint who had association,” 225, right political parties) on the id. at 109 tion of other does not nec (citing Against essarily at 1021 as- S.Ct. Citizens Rent lessen the burden on the Housing rights. Fair In this Berke soeiational order assess Control/Coalition for 290, 296, ley, 434, 437, burden, 454 102 70 we must look to the actual effect U.S. S.Ct. (1981)). party. L.Ed.2d 492 It held therefore that that the restriction will have on the analogy because the state ban on endorsements An to Norman v. Reed illustrates 260 Kirschner, Note, Norman, the Associa R. Fusion and Court point. In Parties, ap- 95 Rights that barred Minor Political an Illinois decision tional reviewed (1995). in a on the ballot As the pellees appearing from L.Rev. 699 Colum. County as members of the Eighth has ob Appeals Cook for the Circuit (“HWP”). Party Washington served,

Harold “simplistic [minor view that the at 702. law State U.S. at S.Ct. just pick be its party] [to can someone else using from the HWP prohibited appellees the burden on the candidate] does lessen County had al- name in Cook because party’s] right to nominate its candi [minor ready to establish a used that name Cities, F.3d at 198 date of choice.” Twin 286-87, 112 at 703-04. Chicago. Id. at Norman, (citing 112 S.Ct. at decision, upheld, if would The state court 705-06). Pennsylvania’s election Because already prevented political party have thus prevent the Patriot from nominat locality branching in one established choice, ing its standard bearer of those laws parts state under the same into other burden on place cognizable constitutional name. Party’s right to free association. Supreme Court reversed the state argues next addi- appli and held that the court’s court decision candidate, nullifying its choice of tion to of the Illinois law violated the HWP’s cation Pennsylvania’s statutory ban on cross-nomi- of free association. First Party’s ability to an nation burdens the build 290, 112 though Id. at Even organization. Although effective prevented political parties from statute new directly or most states ban cross-nomination (those using only a handful of names names York, states, indirectly, including New ten adopted by preexisting parties), the Court allowing a tradition of have looked to the actual effect the restriction appear on the ballot and “fuse” votes with According on the to the would have HWP. Kirschner, supra at parties. See Court, the state court’s “Draconian construc states, 685 nn. 13-14. these obviously tion of the statute would foreclose de- have exerted considerable sometimes development any political party lack local, state, on the outcome of cisive influence to run a cam ing the resources statewide and national elections. Id. at 700-04. 289, 112 paign.” Id. at S.Ct. at 706. documented that in At least one historian has that the restriction in Nor- the fact century, “helped fusion the late nineteenth narrowly pre- man was so tailored significant maintain a third tradition choosing only political party vented guaranteeing could be that dissenters’ votes already that had been chosen the few names symbolic protest, than that their lead- more dispositive. political parties was not other office, gain that their demands ers could instead to the effect that The Court looked Argersinger, “A heard.” Peter H. law would have on the HWP’s efforts to Ballot”: Fusion Politics and Place on the Likewise, organize the state. the fact within Laws, 85 Am. Hist. Rev. Antifusion prevent that laws (1980).3 288-89 political parties choosing only a few explanation A of vote fusion demon- dispositive. brief candidates is not The critical importance issue, rather, strates its to minor See on the is the laws effect Cities, 197-98; Kirschner, 73 F.3d at ability parties participate Twin of minor to mean- process. supra typical at 687. In the “winner takes ingfully in the See William significant century, third fusion was com- tance and even existence of 3. In the late nineteenth (footnote omitted). monplace among many the Democrats and the parties.” Id. at 303 Whether seeking parties West and smaller in the Midwest catalyst for the or not antifusion laws were the powerful Republican Party. alliances significant parties, demise effective third it is turn, Republicans, sought imple- to Id. The many of these laws were motivated ment antifusion laws in order to party’s dominant desire to eliminate or parties uniting against Republican smaller parties politi reduce the influence of third Argersinger candidates. Id. at 291-92. found 291-92, 295-96, system. See id. at 303- cal fusion, by preventing Republi- effective bring impor- cans were able to an end to "the election, ... party’s success de- demonstrates that the minor electoral all” support crucial. ability to the election or pends upon its win meaningfully to a candidate’s to contribute Appellant’s Brief at 6. usually to

victory. parties are unable Minor By demonstrating appeal, thus its electoral general sufficient votes to win the command party may recognition the minor win for its Therefore, even vot- election on their own. policy positions support as well as increased support party’s platform ers who significant from the electorate. If numbers party to “waste” votes on minor are reluctant major party of voters cast ballots for candi- having perceived as no serious candidates line, party may date on minor the candidate winning. Appeals chance of As the Court of position infer that voters like the candidate’s observed, Eighth individu- for the Circuit has party on issues that the minor has raised. support party are confronted als who apparent popularity The more they may proposition; “cast party’s platform with a no-win standing would enhance its for candidates with no realistic with and with their votes candidates voters and allow party party compete effectively the minor more winning, chance of defect from their for votes. major party and vote for a candidate who Cities,

does, all.” or decline to vote at Twin Moreover, are 78 F.3d at 199. step-children politi not the of the American process. cal First and Core Fourteenth Cross-nomination allows voters cast principles protect their party without their vote for a minor “wast- See, organize compete e.g., and to for votes. ing” pros- vote on a candidate with no their Rhodes, 23, 31-32, v. Williams pect winning the election. In states that (1968) 5, 10-11, (noting L.Ed.2d cross-nomination, parties may allow several give “established nominate the same candidate. A voter sim- advantage any decided over new any ply his vote for the candidate on casts struggling for existence” burden to as general one of the lines. The sociate). including In a line of cases votes that the candidate receives on each Rhodes, Celebrezze, Anderson Williams v. together party line are added to determine Reed, and Norman v. if example, the winner. For the Patriot Par- practices struck down statutes or that 'unnec ty had been allowed to cross-nominate Esh- essarily ability politi burdened the of minor director, enbaugh for school participate political pro permitted would to add the votes have been cess. Pa- that he received the Democratic and Williams, the Court reviewed state triot lines and count all of those votes “virtually impossi- that made it election laws (just al- toward his election qualify ble for on the ballot lowed the three candidates nominated except Republican Par- and Democratic major parties both to combine the votes 89 S.Ct. at 8. The ties.” 393 U.S. line). received on each An indi- Court found that the election laws substan- casting vidual his vote on the Patriot tially right to and the burdened both the vote could, therefore, register line his application right to associate and that their Party platform “wasting” without only to minor resulted a denial of his vote on a third candidate who 30-31, equal protection of the laws. Id. at being of elected. The stands little chance striking at 10-11. In Party notes: law, expounded principle the Court example analysis: of fusion’s guides The most vivid bene- our parties fits for minor occurs where a candi- course, why is, no reason two There as the date is elected to office nominee permanent monopo- parties should retain a major minor, parties, and and people two one one ly on to have vote for or margin victory than against Competition is smaller in ideas and them. core of our governmental policies number of votes the candidate received on is at the Amend- resulting tally process electoral and of the First line. fusion, Pennsylva- parties struggling ing cross-nomination and New ment freedoms. and laws burdened the Patriot Par- place must have the time nia’s election for their ty’s ability to meet a candidate and to organize order choose opportunity to posi- gain political requirements organize ballot and influence reasonable tion, by just system. prohibited old have had law as the was Eshenbaugh, despite past. associating with Party’s fact that was the 32, 89 Id. at S.Ct. at first to be its candidate. It was also choice political process principle that politi- prohibited forming a consensual open vindicated should be to new was alliance, which would have eliminated Celebrezze, again in Anderson v. 460 U.S. problem allowed the “wasted” vote (1983). 1564, 75 L.Ed.2d 547 103 S.Ct. strength. its true electoral to demonstrate Anderson, statute threatened to a state course, organize Party free to Of still presidential independent a candidate who had not and to nominate appearing on the Ohio Anderson from John party, by political another been nominated independent required ballot. The statute by imposing requirements, its election but nominating petitions sever- candidates to file undeniably Pa- Department burdened the political par- al months before candidates Party’s right to triot associate. required ties were to file their documenta- 782-83, 103 at 1566- tion. 460 U.S. at imposed by the The burden found that the Ohio 67. The compounded by fact that election laws is effectively late-emerging prevented can- law Pennsylvania permits the two major parties and bur- didacies outside to cross-nominate This addition- candidates. gathering independent voters dened important al burden is an distinction between signatures. Id. at 103 S.Ct. at 1571-72. Cities, In Twin this case and Twin Cities. The Court noted that imposed a on fusion all Minnesota ban especially it is difficult for the State to only suffered justify political a restriction limits disparate impact from the of the across-the- participation an identifiable ease, board ban. The ban on fusion this particular group whose members share a however, applies political parties to minor viewpoint.... 2870(f). only. § See 25 Pa. Stat. Ann. Therefore, laws, unequally A burden that on new or falls laws, independent or on unlike the Minnesota discriminate on small nature, face, impact impinges, very its their as well as their candidates political parties. protected by choices and minor on associational It First Amendment. discriminates As a result of this facial discrimination against particular and —of those candidates parties, the effects of the law importance against voters whose those — striking, significant rami- are even more with existing political preferences lie outside the Party’s right of fications for the Patriot free political parties. major parties association. When the cross- (emphasis Id. at at 1572 103 S.Ct. candidate, did in the nominate added) Fashing, (citing Clements v. election, school board candi- (1982)). 102 S.Ct. 73 L.Ed.2d 508 required enough date will be to attract votes The Court found that the election laws inter- on the minor line alone defeat ability independent fered with the Ohio’s major party ag- candidate who is allowed to voters to “enhance their effective- gregate the votes that he receives on both thereby group” “threaten[ed] ness as a Although argument lines. diversity competition in the to reduce directly goes more to the Patriot marketplace of ideas.” Id. at claim, IV, equal protection see Part infra at 1572-73. Anderson reminds us that “a burden principles orig- unequally political par- on new or small The core First Amendment falls inally expounded impinges in in ties” also on associational choices Williams and refined By protected by prevent- Anderson this case. the First Amendment. extend to

263 statutes, Department place rights laws on of minor the the In of defense argument Penn- at oral that because averred cross-filing by allow sylvania’s election laws appeals courts of have ad- The two that parties in for three political races have split dressed this issue on the result. only, the on cross- offices restriction local case, similar to in On facts those this political at most by parties minor nomination Eighth Appeals Circuit Court of held that minimal Patriot imposes a burden on the by preventing minor laws cross-nomination Party’s rights. free association Given severely parties burden core First and Four- relatively minor status of these offices rights teenth of free association: whole, the De- political structure as Patriot argued, on the

partment burden Norman, in As burden here is severe Party’s First and Fourteenth Amendment keep Minnesota’s the [minor because correspond- right of free association must be political party] developing consensual ingly minor. broadening alliances and thus the base Norman, reading participation our we re- public support Based on in and for its Norman, argument. ject History In the Court par- activities. that minor shows minor must recognized that played significant in ties have role level, themselves at the local often establish system multiple party electoral where a state and it characterized as “Draconian” legal, meaning- nomination is no but have ruling “foreclose!!!] that would have court party where multiple ful influence nomina- any political party lacking development of is banned. tion campaign.” to run a the resources statewide Cities, Kirsehner, Twin (citing 73 F.3d at 199 Norman, at 502 U.S. 700-04). above, supra As the bur- noted Thus, effects the fact an election law’s Party’s right of associa- den on the scope dispositive. Our are limited not tion this case is even heavier than the legal practical on inquiry focuses Twin Cities imposed because un- burden politi- law minor barriers that the erects for Minnesota, Pennsylvania like allows cross- seeking to parties establish themselves See major parties. nomination major par- political to the viable alternatives Anderson, ties. 1572-73. The Patriot seeks to cross-nominate Appeals, major party so Circuit candidate a local election Seventh however, multiple popularity it can of its has held a “ban on demonstrate in an election the ma- nominations does not burden the asso- platform -undiluted political organizational parties....” jor parties’ dominance. Like eiational Swamp, name, argued F.2d at using Illinois’s restriction on the HWP 386. The court Pennsylvania’s may “[ajllowing on to leech onto ban fusion inhibit politi- larger parties real fledgling transition from decreases organiza- forcing parties chose political competition; [sic] cal movement statewide promotes competition.” tion. See id. application candidates this narrow their own Posner, Judges Id. prohibition Ripple, on at 385.4 cross-nomination does Pennsylvania’s dissented from the Seventh Cir- not eliminate burden that Easterbrook public Swamp forge important on in an effort to a link in the 4. One distinction between rival competing and the mind between candidate the one hand and Twin Cities and this case party’s unpopular platform. the other is that candidate apparently par- Swamp manipulation did want the minor might This kind of constitute ty’s Swamp, type F.2d at 385. with nomination. external threat See, contrast, Eshenbaugh accept e.g., willing rightfully are which states concerned. Tashjian, un- at 553-54 nomination. Unsolicited and (noting prevent "the candi- that Storer was wanted cross-nominations of intended without”). problems present disruption dates minor several Therefore, expressly present is consen- we limit our discussion that are not when the alliance example, holding involving will- to cases candidates who sual. For contrive accept impopular ingly third-parly an endorse his cross-nomination. to have Pennsylvania’s grant rehearing Banning cuit’s refusal en banc in B. Interest Swamp.5 Cross-Nomination note, finally, that We burdens on minor Supreme recognizes Court that a state directly translate into bur- “compelling preserving has a interest dens on individual The ban on voters. cross- Eu, integrity process.” of its election rights nomination burdens the associational (citing 109 S.Ct. at 1024 Rosario party a supports plat- of a voter who minor 752, 761, Rockefeller, 410 U.S. 93 S.Ct. recognizes form that his but vote will be a (1973)). 1251-52, 36 L.Ed.2d 1 a “As political nullity he a unless easts for matter,” furthermore, practical “there must party candidate. We do not believe that the regulation be a substantial if elections imposes an First Amendment affirmative ob- are to be fair and honest and if some sort ligation states to maximize support order, chaos, accompany rather than is to case, political parties. But in this process....” Brown, democratic Storer v. party vote cast for a outside the current 724, 730, 1274, 1279, 415 U.S. 94 S.Ct. political mainstream is burdened more (1974). end, L.Ed.2d 714 To this states nec party’s political sup- than the minor lack of essarily adopted comprehensive have port. election code has codes, id., important regula and “the State’s prevents erected an artificial barrier that tory generally jus interests are sufficient to party forming politi- consensual reasonable, tify nondiscriminatory restric alliances, supporters and individual Anderson, tions.” 460 U.S. at ultimately party bear the burden. (footnoted omitted). at 1570 light Supreme prece of relevant Department Wolosik and the of Elections dent, fusion, history practical and the argue challenged Pennsylvania that the elec- effect of the laws on tion important laws further four state inter- Party’s political development, we (1) preventing candidacies; ests: “sore loser” 2936(e) §§ find that 25 Pa. Stat. Ann. and (2) preventing individual candidates from 2911(e)(5) severely burden the Patriot Par “monopolizing” causing the ballot and voter ty’s First and Fourteenth Amendment confusion; (3) preventing a candidate from Cities, of free association. See Twin 73 F.3d “bleed[ing] independent off votes of voters to therefore, Pennsylvania, at 198-99. must major party endorsement”; bolster his or her narrowly demonstrate these laws are (4) encouraging new compelling tailored to serve a candidates to run interest. Norman, independents. justifications S.Ct. at 705- These do not 06; Eu, 222, 109 scrutiny.6 1019-20. bear dissenters, Judge Ripple, writing 5. for all three address fusion and the effect that it has on minor argued Swamp majority opinion that the "devi- important respects methodology ates in from the analysis employed by Court" in argues compel- The dissent that a state has a Swamp, Eu and Norman. 950 F.2d at 388. He ling ensuring partisan interest in voters who ability party stated of a minor to nomi- "pure" Republi- wish to vote for Democrat or important nate another candidate is an can party primary know at the time of the aspect party’s constitutionally protected of a whether the accept candidate will right to choose its own standard-bearer. Department, cross-nomination. The Judge Ripple argued also that cross-nomina- contrast, never asserted that the Common- political major sig- tion can create alliances "of protecting parti- wealth had such interest life,” nificance in our id. at voters, suggested san even after it was as a may yield that fusion information of "immense Furthermore, possibility argument. at oral value" to the electorate and the candidate. "In dissent itself notes that there are means less short, permitting people to vote for a candidate complete restrictive than ban on cross-nomina- on one line rather than another increases protect alleged tion that would interest in opportunity of both voter and to be confirming ideological purity. a candidate’s Be- heard and for workable alliances to be Department cause the has shown no interest in Judge Ripple's formed.” Id. In contrast dis- pursuing argument, this line of we will not dwell Eighth opinion sent and the Circuit in Twin opinion. Cities, on it in this majority opinion Swamp neither the nor opinion directly the district court in this case

265 prevent- would have laws the chal held that court The district dispute into the carrying that justified as a ed him from are Pennsylvania laws lenged secured the Demo- general once he loser” candidates election prevent “sore means Preventing Patriot into the squabble cratic nomination. intraparty carrying an from slip op. major party candi- Party, endorsing the Patriot from general election. the fac- Party’s argument little to limit (finding in this case could do date at 9-11 disputes a ‘sore loser' in the man- “nothing intraparty than more tionalism and represents situation”). are candidates contemplated losers” Storer. “Sore ner on major primary but insist party lose a who prevent laws The election gener in party ticket running on they prevent candidacies insofar as sore loser Brown, v. Storer al election. major either who failed to win a candidate law a California considered party running as a minor party primary from general election place a on that denied general in election. The Penn- candidate vot candidate who any independent ballot purpose, sylvania for this laws are overbroad immediately preceding ined however, easily more nar- could politi with a registered affiliation primary or state’s asserted rowly tailored to achieve the year prior to one party at time within averting loser candidacies. goal of sore Storer, primary. immediately preceding of a runs as the an individual nominee When 726, at 1277. The Court 94 S.Ct. 415 at U.S. hardly be accused of major party, he can restriction, noting that it works upheld the a “forum making general election ballot who independent candidates against man- continuing intraparty feuds” in the merely to parly’s a run in 415 California Storer. ner that concerned “short-range political their own vindicate at 1281-82. U.S. at 94 S.Ct. quarrel.” Id. at personal goals, pique, or justifica- the sore loser note also that We restriction at 1282. Thus the 94 S.Ct. on sweeping ban tion could not parties and “splintered helped prevent parties that minor cross-nomination between un by prohibiting factionalism” unrestrained runs for and place. If an individual is now running from primary candidates successful only, the minor nomination wins one Id. general election. independents as explain why argument not loser does sore at permitted should not be that same individual ease that the held in this The district court from another accept a cross-nomination laws, the Califor- Pennsylvania election like matter, or, a party, for that Storer, challenged in serve nia election long as the party. So preventing interest important state an recently primary or lose candidate did not agree. not We do loser candidacies. sore political party, actively in another participate case, laws, applied in this apply to the not logic of Storer would candidacy. “sore loser” did acceptance of a candidate’s Demo- as the Eshenbaugh was nominated major minor or another cross-nomination going to run and was cratic candidate party. regardless of the general election attempts to Department also run Eshenbaugh did not Party nomination. a means laws as justify the contested election Republi- loser of the merely as an embittered nominating prevent multiple parties Democratic primary; he was the can Department ar same candidate. An individual is not office. candidate for proliferation of gues that a in fact won a he has “sore loser” when clog confuse voters the ballot would general elec- runs in the party primary and machinery. Bullock state’s election major par- bearer for tion as the standard Cf. Carter, 134, 145, 92 856- 405 U.S. quest for ty. Eshenbaugh’s If unsuccessful (1972) (state legitimate has him 31 L.Ed.2d involved Republican nomination had confusion)7; Tash- avoiding voter nothing interest intraparty squabble, Republican in a placed bur- system an inordinate recognized fee Texas Although Supreme Court rights. avoiding den on voters’ voter confu- important state interest in Bullock, S.Ct. at 856-59. it still held unconstitutional sion in (same). 221, 107 jian, Although S.Ct. at 552 cross-nomination could theoreti- 218, 107 Tashjian, cally proliferation But parties, lead to a of minor cf. (noting economy might that administrative simplify 550-51 it also the election ballot and necessarily justify and convenience do not increase the amount of information available infringement rights). First, of First Amendment to voters. might cross-nomination simplify voter reducing choices the abso- matter, is no in As a factual there evidence appearing lute number of candidates on the proposition the record to that parties ballot. As more minor choose to myriad parties “clog” will if small the ballot major party eross-nominate candidates rath- permitted. cross-nomination is In Williams own, er than field candidates of their Rhodes, argued Ohio that election laws appearing number different candidates severely restricting access to the might actually the ballot decline. See discus- necessary prevent large ballot were to num- (discussing sion Department argument infra clogging bers of from the ballot and that cross-nomination will reduce number 33, confusing at voters. 393 U.S. 89 S.Ct. at candidates). Thus, cross-nomination Supreme 11-12. The Court observed that actually lead to fewer candidates and a sim- experience many ... States demon- pler ballot. that no more than a strates handful of Second, if a party champions specific parties attempts qualify posi- to for ballot issues, party’s that nomination of a very tions even when a low number of signal candidate would to voters the electorate, signatures, such as 1% of the is belief that that candidate best required. It is true that the existence of party’s specific addresses the minor con- fragmentary groups might multitudinous parties may provide cerns.

justify regulatory some control but ... at scrutiny more focused posi- of a candidate’s present danger time this seems to us tion importance on issues of to voters. We “theoretically no imaginable.” more than chary policies are op- that restrict voter danger justify No such remote can tions or simplicity information in the name of crippling impact immediate and on the ba- orderly Supreme administration. As the sic constitutional involved in this in Court said Anderson: case. A state’s claim that enhancing (footnotes omitted). Id. ability citizenry of its to make wise deci- reasoning applies We believe that this by restricting sions the flow information Department presented here. The has no to them must skepti- be viewed with some likely evidence to indicate that fusion is cism. As we observed in another First produce proliferation crippling of minor context, it is often true “that (de- Kirschner, supra See at 683-85 open best means to that end is to scribing experience New York’s successful channels communication rather than to cross-nomination). Furthermore, with Penn- close them.” sylvania authority retains the to set reason- requirements 798, (footnote able threshold seek- 460 U.S. at 103 S.Ct. at 1575 omitted) ing admission to the (quoting ballot. See Illinois Virginia Pharmacy Bd. v. Party, Council, Inc., Elections Bd. v. Socialist Virginia Workers 440 Citizens Consumer 173, 184-85, 983, 990-91, 748, 770, U.S. 99 S.Ct. 59 425 U.S. 48 (1979) Panish, (citing (1976)); Eu, 228, 109 L.Ed.2d 230 Lubin v. L.Ed.2d 346 489 U.S. at 709, 715, 1315, 1319-20, 1022-23; 94 Tashjian, S.Ct. 39 at 479 221- U.S. at (1974) Bullock, (“The L.Ed.2d 702 U.S. 107 S.Ct. at 552 legitimate State’s 856-57). short, preventing the De- interests in voter confusion and partment providing has offered no evidence to indicate responsible for educated and voter clogging” the threat of “ballot respect this decisions in necessary no ‘make it ”) imaginary case is more real than the Party’s] rights.’ burden (quoting [a rejected Anderson, 1570). threat Supreme 789, 103 Court S.Ct. at not, therefore, Williams. persuaded by We are election). running general arguments concerning ballot Department’s confusion. clogging and voter Tashjian made clear Storer primarily protecting po concerned with explanations that the other two justify Tashji on litical from external threats. Department proffers to the ban persuasive. are even less an, cross-nomination 107 S.Ct. at 553-54. argues first the ban on Department “prevent disruption Storer was meant prevents a from cross-nomination without, not, independent “bleed[ing] votes of voters off case, bolster her endorsement.” his or taking affecting steps pro internal their own Pennsylvania apparently is concerned that cess for of candidates.” Id. the selection major party allow cross-nomination would Thus, simply inapposite Storer here. is minor-party to win votes candidates Furthermore, Department not has gone party to have minor would otherwise Swamp, 950 at 386 party’s candidates. F.2d demonstrated that cross- Cf. parties (refusing allow minor to “leech to major willing party nomination of a candidate parties support for fear that larger onto” for disrupt political parties in would threaten to competi practice real electoral will decrease any way. party A minor need nominate tion). of question not a candidates This is major major party party a candidate and a votes, however; minor-party “bleeding off’ accept candidate need not the nomination. voluntary party of is a transfusion minor discussion, supra See note The availabili- support major party to the candidate. ty option an of cross-nomination as would not major will not increase a Cross-nomination prevent parties nominating from minor party’s party of minor votes unless share supporting distinct if their own candidates voluntarily major party minor nominates the they Pennsylvania chose to so. has not do It party as its own. is under the candidate a possibility of consen- major party demonstrated how system that candidates current party votes. cross- “bleed off” minor When sual alliance would threaten prohibited, individuals who nomination is do parties implicate otherwise without or may their feel not want to “waste” votes As the concerns outlined Storer. we ex- major compelled party candi to vote for plained, supra, this is not “sore loser” they support date —even if minor situation. platform. Department’s argument The is also under- Finally, Department argues that by Pennsylvania permits mined the fact “Storer and the Election Code major parties to eross-nominate candidates. reeognize[] public policy encouraging If the cross-nomination Commonwealth bans independents and new candidates to run as parties encourage by minor to new candi- discourage[ where one candidate ] a situation office, logically it should dates to run for major party accept could nomination by major prohibit parties cross-nomination party several nominations there other An for the same reason. across-the-board by Depart monopolizing the ballot.” The require on cross-nomination would ban al argues ment that cross-nomination could major parties to nominate their own candi- low a reduce the support competing independent dates, available increasing thus number of candi- by accepting several minor candidates dates field and the level electoral hypothetical This reduction nominations. competition. has of- The Commonwealth available for candi distinction fered no reason for this between reduce number presumably dates would parties. and minor This candidates on the ballot. unpersuasive each We therefore find inter- in argument compelling forth no sets justi- Department that the has offered to est terest, Department’s and the reliance fy par- its ban on cross-nomination minor misplaced. Storer is Department bears the burden of ties. little, anything, say if about Storer has challenged demonstrating encouraging candi- importance new narrowly protect a com- are tailored Storer, independents. dates run as See pelling Because a more nar- state interest. (noting 94 S.Ct. rowly prevent law would sore-loser authority tailored states’ candidates candidacies, this case falls outside the ambit precedent Court’s Department’s concerning equal of Storer. The other protection rights po- asserted Rhodes, unsupported by litical interests are either the rec- Williams (1968). justify outright ord or insufficient to an 21 L.Ed.2d 24 ban Williams, Ohio on cross-nomination minor election laws made it virtual- State ly impossible regulation political par- for new or small ap- of cross-nomination circumstances, placed propriate ties to be on the state ballot for in some but De- presidential presidential selection of partment and vice has not carried its burden in this Thus, candidates. Id. at Pennsylvania’s pro- ease. we hold that laws violated the constitution- politi- hibition of cross-nomination guarantee equal al protection because right violates the Patriot old, “[gave] the two established of free association. advantage decided over new Equal Protection IV. of the Laws struggling place[d] for existence ... sub- stantially unequal burdens on right both the facially election code dis- to vote and the to associate.” Id. major criminates between and minor statutes, 25 Pa. Stat. Ann. The Court characterized the nature of the 2936(e) 2911(e)(5), §§ operate to equal protection imposed by burden the Ohio by parties, cross-nomination minor perspective while 25 laws from the of both voters and 2870(f) § major First, Pa. Stat. Ann. political parties. allows the minor the Court not- parties placed to cross-nominate ed that the election unequal candidates for an burden on supported school director and other local voters who offices. The new or political parties small alleges Patriot because those disparate that voters could not cast an effective treatment also vote for their violates the Four- 31, of choice. Id. at 89 S.Ct. at 10-11. teenth equal protection to Second, placed unequal election laws an of the laws because it violates non-discrimi- political on burden themselves principle by nation enunciated they because were excluded from the ballot Court in Williams Rhodes. See 393 U.S. thereby equal denied opportunity an to 32, at 89 at 11. S.Ct. Because neither Twin win votes. Id. The State election laws bur- Swamp Cities nor involved a ban on cross- protected dened rights constitutional because facially against nomination that discriminated they operated growth to “stifle the of ... parties, we examine for the first time parties working new to increase their in a presented by fusion case the issues strength year year.” 32, Id. at 89 Party’s equal protection Patriot claim. S.Ct. The district court Pennsylvania’s held that Against burdens, these weighed the Court election laws do not violate the Patriot Par- arguments Ohio’s in favor of its election laws. ty’s right equal protection. Party, argued The State that its laws were neces- court, slip op. at applying 11. The the same sary promote stability integrity balancing applied test it to the free political system and for administrative claim, association concluded that the “defen- efficiency. The Court examined each of the legitimate dants’ regulating interest [the] turn, State’s asserted interests in and con- process justifies ballot and election limit- although cluded that pow- states have broad placed ed upon plaintiff by restraints regulate voting, ers to Ohio’s laws constitut- challenged provisions of the Election Code.” ed “an invidious discrimination” violation Appellees Id. assert that the laws should be Equal Protection Clause. Id. at subject to rational basis review because 89 at S.Ct. 10-12. “invidious, do not an arbitrary, create or irrational” classification apply and do not to a Williams, From extrapolate we can suspect They argue class. that because the principles the first and basic structure of our rationally classification legiti- to a related equal protection analysis. It is clear that no government mate in regulating interest may pass its regulating State a law elections ballot, it does not violate the Fourteenth that violates the Fourteenth Amendment’s Amendment. guarantee equal protection of the laws.

269 (discussing at Williams, supra 9-10. 259-260 Nor- at 89 S.Ct. at discussion 393 U.S. Reed). course, Equal does man v. “the Protection Clause Of appli every minor difference not make Nevertheless, Pennsylva- we believe that groups a violation laws to different cation of to ban mi- nia’s decision cross-nomination Constitution,” at id. at of our and to nor allow cross-nomination election laws to ensure we will examine but major parties type of “invidi- constitutes the or classifications the distinctions prohibited by the Four- ous discrimination” under our they create are “invidious” Pennsylvania’s Amendment. decision teenth Id.; Pennsylva precedent. to ban some consensual alliances and (E.D.Pa. Mitchell, F.Supp. 926 nia v. support not others burdens individuals who Clements, 1993) (citing party’s platform because forces (3d 2845-46), aff'd, Cir. 9 F.3d unsatisfactory among to choose three them 1993). “wasting” alternatives: a vote on winning, party candidate with chance of little whether elec order determine voting for a second-choice candi- Clause, Equal laws violate Protection tion date, voting and not at all. This burden totality of the burden must measure we assuaged political parties would be if minor place voting and associa that the laws equal right an were accorded to cross-nomi- rights and individual tional willing nate candidates. justifications voters Williams, the law. offers po- State The ban on cross-nomination 12. As the infringes equal also litical on the “In de Supreme Court stated Williams: them- protection termining or a state law violates whether not may challenged The laws selves. Clause, Equal Protection we must consid the nominating prohibit from its the the facts and circumstances behind er forming and a critical candidate from best law, which claims to the interests the State political alliance that type of consensual protecting, and the interests of those who help it to build in the commu- would disadvantaged by Id. the classification.” Thus, are help to en- nity. challenged laws omitted). (footnote at advantage organizational the decided trench Thus, analysis Party’s of the Patriot our major parties parties new that the hold over many equal protection claim is similar struggling for existence. applied respects balancing that we test ill laws are further The effects these free association claim. to its major magnified parties when the elect to candidate, as cross-nominate same undisputed Pennsylva It that the is in the school board election issue. did par treat minor nia election laws and major parties cross-nominate a When differently. Major file parties ties candidate, minor candidate must nominating petitions primaries are and hold against fight uphill an election battle other’s permitted to cross-nominate each strength well-organized and of two combined board, 25 Pa. Stat. candidates for school see major parties without even the established 2870(f), may parties § while minor not Ann. forming alliances. prospect of its own ballot candidates, Pa. see 25 cross-nominate it is cast for a If vote is “wasted” when 2936(e) 2911(e)(5). §§ Ann. Stat. running against two minor Williams, pre- which The restriction candidates, it is a wasted fortiori appearing on the minor from vented major parties unite behind one when the ballot, undoubtedly a more severe bur- signifi- arrangement an is a Such candidate. rights of minor than den on the right equal cant burden on minor imposed by the state election restriction protection laws. The laws do in this case. Moreover, Pennsylvania imposes these un- nominating from most prevent right on to vote and the equal burdens placing or from their candidate individuals any sig- ballot; protecting they merely par- to associate without prevent As al- countervailing interest. nominating candidates al- nificant from the few ties noted, by by ready the ban on cross-nomination ready parties. But see nominated other overly if it judgment court, broad is intended of the district enter merely judgment prevent Allegheny County sore loser candidacies. Party, and by remand the case to the Depart- The other interests asserted district court for proceedings further consistent with simply ment on behalf of the Commonwealth opinion. this supra See discussion scrutiny. do not bear Furthermore, many at 264-268. of the De- GREENBERG, Judge, Circuit dissenting. partment’s arguments concerning ballot respectfully I majority dissent. As the transparency and voter choice are under- indicates, appeal challenge involves a mined the fact that the Commonwealth 2936(e) Pa. §§ Stat. Ann. tit. allows politi- cross-nomination 2911(e)(5) (1994) applied “as in this case to prevent Party [Patriot] nominating from Pennsylvania’s facially election laws dis- Eshenbaugh” [Michael] as a candidate for criminate in a school director Allegheny the North way ability organize that diminishes their School Majority District. at 256. Eshen- compete effectively and to baugh cross-filed for the office in both the process. Department compel- offers no Republican Democratic primaries. He ling justification for the Commonwealth’s fa- won the first but lost the second. cially hold, discriminatory laws. We there- the time that Party as a minor fore, facially discriminatory that these laws party attempted to nominate create an “invidious classification” that vio- candidate, its already he was the Democratic Equal lates the Protection Clause of the Everyone agrees candidate. that the nomi- Fourteenth Amendment. nation was thus unlawful under law as written. V. Conclusion majority statutory invalidates the bars election laws burden the to Eshenbaugh’s nomination on First and Party’s right of free association Fourteenth grounds. It finds preventing nominating “severely the statutes burden the Patri- They candidate of its choice. also ot First and Fourteenth Amendment fusing Majority its votes with free association.” those of It also “facially finds that the major statutes the in dis- order maximize its between par- criminatef] and minor appeal to voters and to build its in Equal ties” violation of the Protection organization. Appellees compelling assert no Amendment, Clause the Fourteenth be- justify state interest the election laws as they preclude cause party a par- minor applied case, Pennsylvania in this could ticipating in the cross-nomination of a candi- easily goal achieve its preventing asserted date allowing major parties while to do so. “sore-loser” candidacies with a more narrow- Majority at 267. ly Pennsylvania’s tailored law. ban on cross- majority suggest does not that these nomination minor there- First and problems Fourteenth Amendment fore Party’s violates the Patriot First and require the invalidation of the statutes at Fourteenth Amendment of free associa- issue without analysis. Quite further to the tion. contrary, it balances the minor consti- The laws also violate the Fourteenth rights tutional with the state’s interests in guarantee equal protection Amendment’s precluding cross-party candidacy ques- in They laws. discriminate minor tion here. It then finds that the state’s parties and the voters who wish to restrictions, justify interests do not and it them supporting without compelling a or thus challenged Pennsylva- “hold[s] that the significant even a state interest. laws, nia election applied case, as in this We constitute an therefore hold that unconstitutional on burden Party’s First and Pennsylvania laws, Fourteenth Amend- applied election as in this rights ment to free case, equal association and constitute an unconstitutional burden protection.” Majority at 270. on the Patriot First and Fourteenth to free association and I that methodology believe used equal protection. will majority We therefore reverse in its thoughtful well-drafted and dissent, however, completely ideology of a opposed be- be I opinion is correct. case, that, applied in this party yet pri- I as cause believe but discover after the interest. compelling the statutes serve mary that his or her vote has contributed majority expresses concern that While party by nominat- the fortunes of the minor protected, it Party’s rights be run ing its candidate to as Democrat or it consider counter- acknowledges that must Pennsylvania Republican as well. The stat- Pennsylvania vailing Under the interests. preclude such stealth situations. The utes scheme, primary in a voter in a election mi- majority demonstrates its concern that a cross-filing permitted, will know which is party political orga- its nor be able to “build or at candidate has cross-filed whether a Majority it nization.” 260. What to the least that information will be available partisan major party overlooks is that a voter Thus, primary the voters in the knew voter. may help not want his or her vote used or could have known in that effort. Republican seeking the Democratic and both very nominations. That information could be recognize reasonably I it could be voter, many particular vot- important to argued Pennsylvania could avoid the partisan one or the other ers are advocates of problem identity by requiring I only for major political parties and will vote prior pri- their candidates to the to select course, party. vot- candidates from that Of course, mary such a condition election. Of partisan ap- every right have to that ers party’s flexibility would restrict primary may refuse to proach. A voter problems of its own. In and would have for a who has cross-filed with vote event, possibility that a minor choosing to vote party, another instead designate its candidate before the ma- could Republican. “pure” or for a Democrat my jor party primary election does not affect voter, might partisan political To the Rather, analysis. I this case as it take has or she as a shock to discover that he come presented by appeal to this been politi- advocate of a minor voted for a closet majority on which the de- and on the basis short, party. people In some see while it, cides which whether tickets, may put off merit in fusion others applied in are unconstitutional “as statutes I, course, opinion express no them. possi- I do not address the this case.” I, however, express political point. this do bility statutes compelling opinion that the state has applied if in a situation in be unconstitutional ensuring primary interest that voters nominating which the minor files its elections not be deceived electoral for, if papers primary even before the case, primary process. a voter circum- unconstitutional in that would be May director knew school stance, they validly applied See can be here. Eshenbaugh could have known that or School, as a seeking to run as a Democrat and 471 Pa. v. The First Commonwealth Republican (1977). and voter could take or leave the Here the 705-07 370 A.2d Eshenbaugh that If the statutes at on basis. Eshenbaugh after nominated before issue in this case had been invalidated accepted its nomination primary, and he could not also primary, what the voter time, the district court and at that and both known was that a vote for have adjudicated on that majority the case candidate of the would be a vote for the also do I. basis and so in Party. majority sees merit point. I final I infer from the make one avail- “increas[ing] the amount of information that majority opinion that it believes voters,” majority and do I. so able dependent upon the cir- it reaches is result majority’s approach is problem with the major Pennsylvania permits cumstance deprives of the crucial infor- the voter elections. cross-filing in director knowing identity political party mation of the school parties with a candidate has an affini- at least Certainly my which inference is correct ty- majority’s equal protec- respect to the with majority identifies the holding, as the tion point I shrugged raise should not be opposed to of a minor as disparate treatment Today par- off. we have single-issue political statutory scheme that ties. A Democrat or in the Republican voter banc, permits major par- rehearing in voted for the court in candidates to cross-file petition rehearing is denied. ty primaries not to file as but both and candidate. granted have Judge would GREENBERG Nevertheless, applica- I how do see rehearing. rights majori-

tion of association the free ty can be cabined elections in identifies permits cross-filing.

which some the state contrary, logical

To the it seems to me that majority’s inevitably approach leads (and Pennsylvania conclusion circuit) jurisdictions per- in this

other must elections, cross-filing

mit in all so that follow- office,

ing any primary any election for party may willing major nominate the minor candidate to be can- all, why didate in that election. After are the H., Minor, by JEREMY his Father and of the minor associational HUNTER; Friend, Next W.E. W.E. Hunt any way dependent on the circumstance that er, behalf; Rita Hunter his own candidate could cross-file Democratic primaries? and Republican DISTRICT; I foregoing respectfully

For reasons MOUNT LEBANON SCHOOL view, German, personally Robert and in my dissent. stat- his capacity a member official as of the applied utes as in this case are constitutional. Board; Judy Mount Furthermore, Lebanon School majority I believe Mcverry, personally and her official opinion implications carries which could capacity as a member of Mount Leb bring changes in about fundamental the elec- Board; anon Marie School Loretta processes tion and the other Humphreys, personally and her offi jurisdictions judicial circuit in this deci- capacity cial member of the as a Mount ought lay sion. We not to foundation for Board; Henry Kaski, Lebanon School J. development. changes such a If such are to personally capacity his official come, bring legislatures let the them about. a member of the Mount Lebanon School SLOVITER, Judge, Before: Chief Board; Walton, personally Carol J. BECKER, STAPLETON, MANSMANN, capacity in her as a official member of SCIRICA, GREENBERG, COWEN, Board; the Mount Lebanon School ROTH, NYGAARD, ALITO, LEWIS Templeton Smith, personally and in his McKEE, Judges. Circuit capacity official member as a Board;

Mount Lebanon School Jean Palcho, personally and in her official SUR PETITION FOR REHEARING capacity as a member of the Mount Leb Board; Beverly Maurhoff, anon School Nov. personally capacity and in her official as rehearing petition by appel- filed a member of the Mount Lebanon School having lees above-entitled case Board; Smartschan, personal been Dr. Glenn judges participated submitted to the who ly capacity Super and in his official as the decision of this Court and to all the other Lebanon intendent of the Mount School Board; Allen, personally judges regu- circuit of the available circuit Dr. Deborah service, Director judge capacity lar and no as active who con- her official Lebanon having Pupil curred in the decision for re- the Mount asked Services Sullivan, Monica hearing, District; majority judges Dr. and a circuit School capacity official personally her regular having of the circuit in service

Case Details

Case Name: Patriot Party of Allegheny County v. Allegheny County Department of Elections

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 9, 1996

Citation: 95 F.3d 253

Docket Number: 95-3385

Court Abbreviation: 3rd Cir.