Reform Party of Allegheny County v. Allegheny County Department of Elections Mark Wolosik, Director of the Allegheny County Department of Elections

ROTH, Circuit Judge: In review, this en banc we must deter mine to what extent our earlier decision in Party Allegheny County v. Alle Elections, gheny County Dep’t 95 F.3d (3d Cir.1996) (Patriot I), Party re mains good law in the wake of the Su preme Court’s decision Timmons v. Area, Twin Cities Party, New (1997). we held that issue, statutes at which in certain local elections bar cross-nomina tion of candidates by but by major parties, violated the Patriot Party’s2 right to freedom of association under the First and Fourteenth Amend ments, as well as its right equal protec tion of the laws Fourteenth Fraas, Kerry Solicitor, County Allan J. We Amendment. now conclude that Opsitnick (Argued), County Assistant So- decision in upholding licitor, Miller, Michael McAuliffe Assistant Minnesota “anti-fusion” statute Solicitor, County Allegheny County Law attack, First Amendment does under PA, Dept., Pittsburgh, Appellants. for cut equal protection our analysis in Patriot Cornish F. Hitchcock (Argued), will, therefore, Public I. We reaffirm our Litigation Citizen Group, Washington, holding statutes D.C., Siskind, Miner, Sarah E. here, Barnhill & to the local elections Galland, Madison, WI, B. question, Jonathan Robi- violate Party’s right the Patriot son, PA, Pittsburgh, Appellee. to equal protection of the laws. Debevoise, 1. The change Honorable R. Dickinson tion name Judge Senior United States District for the Allegheny County Party Alleghe- to Reform Jersey, sitting by District of designation. New ny County. opinion, In this continue will the former appellation. use By January Order dated this court granted plaintiff's cap- motion to amend the Par- the Patriot stemmed The case Background

I. Michael Eshen- attempt to nominate ty’s sepa- two implicates review This en banc director for school baugh as a candidate cases, In both cases. but related rate Allegheny School North Pennsylvania’s constitution- challenged the general in the November District on minor Pennsylvania’s ban ality was barred nomination This election. offices, local in certain “cross-nominations” ban, because of the fusion application §§ Ann. Pa. Stat. the nomi- already sought had Eshenbaugh of the Patriot 2911(e)(5), violation aas May in the nation of both of association and freedom Party’s right to he had primary, municipal protection of the Democratic secured the essence, challenged statutes laws. Party. Republican Party, but not from cross- parties political minor prevent Party certain local candidate for Patriot nominating February the a already has injunctive that candidate declaratory offices when filed suit for by office the same § for the been nominated under U.S.C. relief major parties, party. The political of Elec- County Department another Allegheny engage cross allowed to are “the De- (collectively, director tions and its local of- for those “fusion” nomination or two relevant alleging partment”), Pennsylva- consequence, a while fices.3 As Election Code Pennsylvania sections of cross-nomi- all from prohibits nia of Party’s right free the Patriot violate most state for person the same nating and Four- the First association exception primary offices, it an makes Amendments, as well as teenth offices,4 in which five local elections for laws under the protection equal to cross-nomi- permitted are The District Amendment. Fourteenth candidates, but minor nate each other’s for the summary judgment granted Court doing.5 prohibited are so panel appeal, a divided On Department. District Court’s reversed the of this court facts of the first case undisputed The 9, 1996, in Patriot September 97-3359) ruling on (No. Patriot Par- set forth in are 4, 1996, we denied Party I. On November briefly here. I, them ty but we summarize a named therein filed the candidate by "if more than "the nomination 3. “Fusion” is any public for petition office for nomination candidate for political party the same one primary, been nominat- ensuing or has general election.” same the same office by papers any nomination such office ed for S.Ct. at 1367 n. Twin Furthermore, McKenna, filed....” Party previously F.3d Area Cities New 1996)). 2911(e)(5) requires (8th § Cir. 197-98 [tjhere appended to each nomi- shall be each can- "judge paper of a court of ... an affidavit 4. The five offices nation therein, Philadelphia Municipal stating pleas, nominated common didate —... Philadelphia, presented a Court of ... as or the Traffic name has not been his any petitions that office for by in a district where director school nomination elective, peace.” justice of the ensu- or ... for at the public is office to be voted 2870(0- election, § Stat. nor has he been ing primary Pa. Ann. pa- by nomination other nominated Party explained I 5. The court in Patriot any such office.... pers for filed challenged statutes: structure of the election sections code The above papers” filed apply to the "nomination political party, the Patriot As a minor parties and to "nomination petitions” Party not file "nomination does partici- by major parties petitions” filed elections, do the primary for Thus, primaries. while pating in the Instead, Party, parties. Patriot political 2870(f) Pennsylvania election § code political parties, must file other like parties to cross- expressly allows containing the num- papers” "nomination director, school for nominate by Pennsylvania signatures specified ber of 2911(e)(5) 2936(e) prevent §§ § Stat. Ann. 2872. law. Pa. political cross-nomination Code Section Party n. 1. 95 F.3d at 256 paper filing Patriot of a prohibits Department’s petition decided), for rehearing en Timmons Court, was the District banc. The did not seek writ a relying on this Court’s decision in Patriot remand, of certiorari. On the District Party granted the Patriot Party’s mo- an granting Court entered order declarato- tion for summary judgment, denied the ry injunctive relief in favor of the Department’s dismiss, motion to and en- Party. Patriot tered an order granting the requested in- junctive and declaratory later, appeal, relief. On 28,1997, April months

Four that order was also affirmed in Supreme Court issued its decision in Tim- Party II, II. In result, mons. April panel As De- recognized partment filed motion for I relief from had held judgment pursuant in this Fed. violated the 60(b). R.Civ.P. The protection District rights Court denied Patriot Par- requested ty. relief. Department ap- concluded that it was bound order, pealed that and another insofar as the equal this court opinion affirmed it in an filed holding had not been overruled (“Patriot ”), June II which Timmons. discuss further in will connection with On June the Department filed case. second petition banc, rehearing en asking us undisputed The of facts the second case (and to decide whether Party I Patriot by (No. 96-3677) also involve a nomination to extension, ) Patriot II Party has been the office of school director the North 22, July 1998, overruled Timmons. On 13, Allegheny School District. On May granted petition the for rehearing en 1995, the Patriot Party selected several banc. For the reasons below, we set out office, candidates for this Bar- including we conclude that Party Patriot I has not 16, 1995, bara May Childress. On before been overruled to the extent that it held municipal elections, the primary Childress Party’s Patriot right to pro- perfected her nomination as one of the tection of the laws was violated the ban Party’s Patriot filing nomi- on fusion local the elections papers with Department. nation the in question.

Childress also sought the nominations of Republican the and parties, Democratic Party II. Patriot I and Timmons and municipal in the primary she won both discussion, To our begin helpful it is first of these nominations. May On to holdings review the Party in Patriot I that, the informed Childress I, and in Timmons. In Party Patriot she previously since had filed nomination panel of this court held that 25 Pa. Stat. petitions seeking the nominations of the 2911(e)(5), §§ Ann. and pro- major parties, prohibited she was parties, hibit but parties, seeking the a minor party. from cross-nominating candidates in cer- The Patriot Party brought an action elections, tain local parties’ violate minor pursuant 1983, § to 42 in- seeking U.S.C. rights to freedom of and equal association junctive relief, declaratory and alleging protection of the laws. again once pertinent the two sections Election its freedom of analysis, Code violate association Party’s the Patriot the panel right free the stan association right and its equal protection Supreme dard set prece the forth dent, laws. The including filed a Eu v. San motion Francisco Coun pursuant 12(b)(6), Comm., dismiss ty 214, Fed.R.Civ.P. Democratic Cent. the while filed a motion

summary judgment (1989), Celebrezze, Fed.R.Civ.P. 56. and Anderson v. (several October months before U.S. 75 L.Ed.2d endorsement’; and major party her the stan- (1983). panel reiterated The in- as to run new candidates encouraging dard: Id. The panel examined dependents.” a state election whether To determine and found interests of these each Constitution, we the U.S. law violates scrutiny. Id. 264-68. not bear did challenged whether the first examine by the rights protected challenged the

law burdens panel also held The If Amendments. parties’ and Fourteenth First violate statutes protected rights, we law does burden the laws. The equal protection magni- character facially discrim- gauge must statutes observed plaintiff the burden and minor tude of between inated importance dis- was weigh respect that in this justi- proffers that the state statutes Minnesota interests from the tinguishable examine had Appeals We fy burden. Eighth Circuit Court strength of state’s Id. at 268. Re- in Timmons. legitimacy considered interests, necessity of but the proffered and structure principles on the lying in order plaintiffs burdening rights Supreme in the analysis equal protection Rhodes, burden those interests. If in Williams protect decision Court’s severe, rights is plaintiffs 5, 21 L.Ed.2d on the S.Ct. compelling and must be whether (1968), state’s panel examined tailored to narrowly must be the law distinctions invidious laws created election interests. 95 F.3d serve state’s or classifications. Williams, U.S. at at 269 (citations 95 F.3d 5). its task delineated omitted). totality of must measure “we follows: standard, con- applying panel, place laws that the burden statutes in- cluded political rights of voting and associational Party’s right upon the fringed individual voters parties and “First, the ways: in two free association sup- offers that the State justifications from nomi- prevents restriction Williams, law.” Id. port the who the bearer the standard nating 5). Applying effectively [its] advance ‘most will thinks “Penn- that panel analysis, the concluded Second, the chal- platform.’ and program ban cross-nomination sylvania’s decision deprive the Patriot lenged election laws to allow cross-nomi- by minor and votes opportunity an ‘fuse’ Party of major parties constitutes nation thereby major party and of a with those prohibited discrimination’ type of ‘invidious political process.” inroads into make Id., Amendment.” by the Fourteenth burdens panel found these Id. Because that, treating panel noted S.Ct. The severe, that held to be differently, the minor and that these demonstrate “must minor burdened both statutes compelling to serve a narrowly tailored Id., them. support voters that panel Id. 264. The interest.” conclu- its earlier panel reiterated concluded, justifications that unequal that, of these in the face sion not Department meet by the did offered no burdens, had offered Id. Specifically, this test. Id., justifications. compelling inter- important state argued four had unequal bur- these (“Pennsylvania imposes “(1) preventing ‘sore served: ests were right and the to vote right dens on (2) candidacies; preventing individu- loser’ any significant protecting without associate bal- ‘monopolizing’the from al candidates interest.”). countervailing state confusion; pre- causing lot voter Timmons, upheld Supreme Court ‘bleedfing] off from a candidate venting imposed general a laws that Minnesota bolster voters to his independent votes

3H ap- The Court imposed by ban on fusion candidacies. ed the burdens plied test had parties’ the same Minnesota’s ban on fusion concluded “justified but rights associational were ‘cor- violate the Minnesota laws did not respondingly weighty’ valid state interests Assessing to freedom association. political in ballot integrity stability.” placed political par- the burdens on minor at 1375. rights, reject-

ties’ associational Court ed the that a burden argument severe was 60(b)(6) III. The Rule Motion imposed by might fact that a party be matter, As a preliminary we must deter- prevented in- nominating particular from a mine if properly the District Court denied dividual as its standard bearer. 60(b)(6) Department’s Fed.R.Civ.P. (“That particular S.Ct. at 1370 a indi- motion relief from filed in judgment appear vidual may not on the ballot as a Eshenbaugh’s case.6 The in Patriot particular party’s candidate does not se- Party II affirmed the District Court’s de- verely that party’s burden association agree. nial motion. We rights.”). rejected then an ar- gument imposed the fusion ban a We review district court’s deni parties’ attempts severe burden 60(b) of a al Rule motion for abuse of develop to organize political alliances. discretion. Central W. Rental v.Co. Hori (“Minnesota Id. at not directly has (3d Leasing, zon 967 F.2d Cir. precluded political parties from de- 1992). An may abuse discretion veloping Nor organizing.... when found “the district court’s decision particular group Minnesota excluded upon clearly rests finding erroneous citizens, party, partic- or a political fact, an errant conclusion of law or an sum, ipation process.”). the election improper application of law to fact.” In Court concluded the burdens associ- Union, Trucks, ternational UAW v. Mack imposed rights ational fusion ban (3d Inc., Cir.1987). F.2d “—though trivial—are severe.” Id. at 1372. 60(b)(6) Relief under Rule “is

Having determined that the burdens available in cases evidencing extraor severe, proceeded dinary were not the Court circumstances.” Martinez-McBe review,” Islands, conduct a in exacting Virgin “less which an v. 562 Government of (3d Cir.1977) “a ‘important regulatory State’s interests’ F.2d 911 (quoting Strad (3d Cortez, will usually enough justify ley be to ‘reason- v. F.2d 518 493 Cir. ” able, 1975)). Furthermore, nondiscriminatory “[ijntervening restrictions.’ de Takushi, (quoting velopments by 1370 Burdick v. 504 in law themselves rare 428, 434, U.S. 119 ly L.Ed.2d constitute the circum extraordinary (1992) (internal omitted)). quote marks for required stances relief under Rule 60(b)(6).” Felton, The Court reasoned that Agostini “the State’s as- v.

serted regulatory interests need be (1997). below, ‘sufficiently weighty to the limita- As we will discuss the Su imposed party’s] tion’ preme Court’s decision in did [minor Timmons rights.” Id. Norman (quoting holding v. not overrule the of the Patriot Reed, 279, 288-89, 698, Party panel the Pennsylvania stat (1992)). Although Equal L.Ed.2d utes at issue violate the Protection Therefore, Court declined consider Minnesota’s al- as the in Clause. Patriot in leged extraordinary II no “avoiding recognized, voter confu- cir sion,” justify grant- id. at 1375 n. conclud- Court cumstances exist would former, Department judg- appeal, opt- The moved for relief from have abandoned the (6), 60(b)(4) 60(b)(6). ing only ment under but under Rule Rule for relief Co., Ins. Paul Fire & Marine St. Department’s under Rule motion

ing Cir.1991). (3d 60(b)(6). F.2d Furthermore, to the extent that is The before us primary issue to use its Rule Department attempting is Party’s equal protec Patriot whether the 60(b)(6) seeking a re as means viable after Timmons. motion claim tion is still I, in of our decision the Timmons opinion view itself Nothing 60(b)(6) not be as a may motion used analysis Rule equal protection weakens the Martinez-McBe appeal. for substitute an equal protec no an, F.2d at 911. The by asserted or considered tion claim was for certiorari in the petition statutory in Timmons. chose The the Court though it was on Eshenbaugh case even Timmons differs from the scheme Timmons case was then notice that manner crucial in a scheme In the'Supreme Court. analysis. Tim- pending before equal protection for deed, might have petition for certiorari mons involved an ban on across-the-board banc the need for this en review. obviated fusion both attempt to contrast, cannot second- The in statutes now with its Rule guess that decision that fa a ban on cross-nomination volve 60(b)(6)motion. cially discriminates allowing major parties, but not minor reasons, we For the above stated cir certain cross-nominate in the District find no abuse of discretion Supreme Court in Tim- cumstances. The 60(b) the Rule motion. Court’s denial of can treat mons did not hold that states properly concluded that The District Court discriminatory way. in a In (No. Eshenbaugh’s case the outcome deed, deciding discussing the test for 97-3359) for reopened not be further could laws violate First whether state election consideration. associational and Fourteenth Amendment wrote: rights, Equal Protection Claim IV. Regulations imposing severe burdens narrowly tai- Party’s plaintiffs’ rights must be turn now to the We compelling advance a summary judgment in Chil- lored and motion burdens, however, (No. 96-3677), trig- interest. Lesser granting dress’s review, and exacting less a State’s ger was affirmed ” “ will II. judg ‘important regulatory interests’ granting summary usually enough justify “‘reason- subject plena court is ment district ” able, Corp. nondiscriminatory restrictions.’ Imaging Med. review. American ry applies to freedom of associa- 7. We have not to address whether the as it chosen opinion Supreme in eviscer- Court's Timmons tion. rights analysis ates the associational in Patriot Nevertheless, that can be extent it Party opinion, current we hold I. our rights analy- suggested that the associational §§ 25 Pa. Stat. Ann. that 2911(e)(5) Party may I have state-wide or sis in Patriot because are unconstitutional implications process- circuit-wide es, for election equal party's right protec- violate minor I, (Green- Party F.3d at 272 see Patriot 95 degree of the of the laws. Some associa- tion J., dissenting) majori- berg, (arguing that the rights analysis Party may in Patriot I tional Party approach I to the ty’s in Patriot "leads laws, viable remain (and the other conclusion the Minnesota laws in Tim- in contrast circuit) permit jurisdictions in this must mons, facially discriminate between elections”), cross-filing we note that the in all exacerbating parties, minor thus the bur- decision, Because, ruling generally that a Timmons imposed dens however, on minor applicable does not unconsti- anti-fusion law protection analysis equal is di- our ap- tutionally rights, infringe on associational impact of at the this same discrimina- rected suggestion. pears indeed to foreclose such tory language, go on to it we do not examine

313 Timmons, 117 S.Ct. at (emphasis 1370 test: “In determining whether or not a added). Thus, though even the Court held state law violates the Equal Protection that the posed by burdens Clause, fusion bans on we must consider the facts and parties severe, and voters are not circumstances law, behind the the interests Court still maintained a requirement which the State claims to be protecting, the restrictions be reasonable and and the nondis- interests of those who are disad- 9 criminatory. vantaged Because the Pennsylvania by the classification.” Id. permits law by major fusion parties, but As panel Party Patriot I ex- prohibits fusion is, on plained, Williams, “[i]n Ohio election laws face, its discriminatory.8 made it virtually impossible for new or political small Moreover, parties placed the Court in be on the Timmons did state ballot for presidential selection of overrule way its decision in presidential vice Rhodes, Williams v. candidates.” 393 U.S. I, F.3d at (citing Williams, (1968), L.Ed.2d 24 on which the 5). U.S. at I “Thus, S.Ct. panel relied in its challenged laws violated the analysis. Rather, constitutional the Court cit- guarantee of equal protection Williams favorably. ed because they Timmons, See ‘[gave] old, the two parties established S.Ct. at Williams prop- for the decided advantage over any new parties osition State interest in the stabil- struggling for existence and ... place[d] ity of its political system permit “does not substantially unequal burdens on both the a State completely insulate the two- ” right to vote and the right to associate.’ party system parties’ from minor or inde- Id. Williams, (quoting pendent competition candidates’ and influ- 5). S.Ct. panel ence”). acknowledged that “[t]he restriction in Williams, Supreme Court stated Williams, prevented minor parties at the outset: from appearing ballot, was undoubt- It is true that has firmly edly a more severe burden on the rights of established principle Equal parties than the imposed restriction Protection does Clause not make every by the state election this case.” minor difference in the application of Nonetheless, at 269. held laws to different groups a violation of that “Pennsylvania’s decision to ban cross- our Constitution. But we have also held nomination by and to allow many times that “invidious” distinctions by major cross-nomination parties consti- cannot be enacted without a violation of tutes type of ‘invidious discrimination’ Equal Protection Clause. prohibited by the Fourteenth Amend- Williams, 393 U.S. at 5. The ment.” Id. We reaffirm this holding for Court went on to define applicable the reasons set forth below. argument

8. An could made that the Court In Patriot Party reciting after the Williams give Timmons did in permission test, fact states analysis wrote that "our to treat minor differently. For exam- Party’s equal protection claim is simi ple, the Court wrote that "the States’ interest many lar in respects to balancing test permits them to regulations enact reasonable free association claim.” Pa practice, that may, in favor the traditional this, triot 95 F.3d at 269. From two party system.” 117 S.Ct. at argue tries to if the free of, argument however, disposed This is association claim is vitiated then recognition that there ais difference equal a claim is also fortiori regulations between practice” that "in favor a however, argument vitiated. This ignores, system two party and those on that their face equal protection fact that the analysis suffi is discriminate between par- and ciently different from the free association ties. The statutes discriminate analysis so as to stand on its own. on their face between par- and minor ties. 314 “burdens party in an on minor cross-nomination question to be addressed first of protection challenge support party’s is what level a minor

equal who individuals reviewing scrutiny apply should in it to platform we forces them choose challenged laws. In order to make this unsatisfactory three alternatives: among decision, impact of the we must assess the a a vote on minor ‘wasting’ See, e.g., rights at stake. laws a winning, voting with little of chance Bd. Elections v. Socialist Illinois State candidate, major party and second-choice of Party, Workers all.” Patriot voting at (1979) (holding that 59 L.Ed.2d 230 Second, the ban F.3d at 269. burdens “[rjestrictions on the ballot bur- access to they political parties themselves because rights” two and fundamental den distinct “may nominat- prohibit a minor from “a and that State must establish its ing forming and a its best candidate necessary is serve a com- classification to political type critical of consensual alliance Carter, interest”); pelling Bullock help support that would build 134, 142-44, 849, 31 L.Ed.2d U.S. Thus, community. challenged laws filing- (concluding that a “Texas help organizational entrench the decided to has real appreciable fee scheme a hold over advantage that the franchise” impact on the exercise of new for existence.” Id. parties struggling the laws must therefore be “ ‘closely reasonably scrutinized’ found addressed Court Timmons necessary accomplishment legiti- (in rights associational similar burdens its objectives in con- pass mate state order to analysis) general the context of ban on muster”). Williams, In for ex- stitutional burdens, fusion and concluded ample, began analysis the Court its trivial, although not were not severe. identifying rights burdened the Timmons, 117 S.Ct. at 1370-72. The challenged right state laws—“the of indi- proceeded apply Court then strict associate for the advancement viduals to scrutiny, but an intermediate level scru beliefs, political right qualified and the tiny, in which “the State’s regula asserted voters, regardless political persua- of their tory ‘sufficiently need interests sion, effectively.” to cast their votes weighty justify imposed the limitation’ Williams, 393 at 89 S.Ct. 5. The U.S. party’s] rights.” on Id. the[minor in question reasoned that Court Norman, 288-89, (citing U.S. at placed on “substantially unequal burdens 698). standard, this S.Ct. Under right vote and the both “require Court indicated it would not Id. 5. The associate.” elaborate, empirical verifications determining stated: “In whether Court justifi weightiness the State’s asserted power place unequal the State (citing cations.” Id. Munro v. Socialist minority groups rights where burdens 189, 195-96, Party, Workers U.S. stake, of this kind are at the decisions of (1986)). S.Ct. 93 L.Ed.2d 499 consistently ‘only have held that regula- compelling state interest assume, must, If and we we we believe subject consti- tion of within the State’s require the that the above stated burdens power to can limit- regulate tutional protec- scrutiny in an same level ” ing First Amendment freedoms.’ analysis tion do an association- Button, NAACP v. analysis, apply al then we must now rights (1963)). doing scrutiny. an intermediate level of so, recognize, case, therefore, will that be- In the instant we must discriminatory aspects cause of the identify imposed by Penn- burdens statutes, im- burdens sylvania laws. posed by political on voters panel, equal protection analysis, iden- them First, than those in- following burdens: the ban are more onerous tified Timmons, attained.”). object In the the volved Timmons. We find no justification. the Although asserted burdens existed in context of the Depart- justifications, ment an across-the-board ban on fusion. Tim- has identified such as mons, preventing manipulation pre- ballot (noting ban, serving political stability, major recog- that were applies Minnesota “which nized in alike, legitimate Timmons to be parties simply precludes and minor interests, see 117 S.Ct. at appearing 1373- party’s one candidate from ballot, candidate, has not as that if demonstrated party’s how these interests are served un- already party”). nominated another equal case, imposed Indeed, burden is here. the instant the burden exacerbated Department acknowledges in its brief that Pennsylvania has allowed the ma- idea why it has no jor legis- parties to cross-nominate but has disal- major lature chose to allow party cross- doing lowed minor the same. the five local elections at As I wrote: here, but opportuni- issue denied the same The ill effects of these laws are further ty parties. Department to minor Br. at major parties when the elect magnified 17.10 candidate, cross-nominate same as they did the school board election at As the ex- major issue. When the cross- plained, “Pennsylvania imposes these un- candidate, a nominate a equal burdens to vote uphill fight candidate must an election right protecting any associate without against strength battle the combined significant countervailing state interest.” well-organized ma- two and established 95 F.3d at 269. In the jor parties prospect without even equal claim, context protection forming its own ballots alliances. If a Pennsylvania any has not regula- asserted vote is “wasted” when it is cast for a tory interests “sufficiently running against weighty” justify discriminatory candidates, major party two it is a treatment forti- ori wasted when the unite When we consider constitutional one behind candidate. challenges to specific provisions of a 95 F.3d at 269. laws, speculate State’s election we cannot an Using scrutiny, justifications pro intermediate level of possible about for those our step next is to weigh, identify visions. court “must imposed, any plausible justifica precise put burdens evaluate the interests forward tion State imposing justifications has advanced for for the bur State Anderson, unequal par imposed by burdens and minor its rule.” den Evans, v. 1564; ties. Romer U.S. Cf. cf. Edenfield 1620, 134 (1996) Fane, L.Ed.2d 855 (“[E]ven that, the ordinary (observing review, calling most deferential of unlike rational basis the intermedi standards, knowing applicable we insist on the rela ate in com standard review tion adopted speech permit [the between classification and mercial cases “does not addition, 2403(b). § The Commonwealth of 28 U.S.C. the Attor- also declined to assert interests to ney General was invited this Court to sub- that, this discrimination. We note in both supplement Depart- mit an amicus brief case, Eshenbaugh's and Childress's the Dis- statutory ment's defense of the scheme in this requisite trict Court served notice on the instance, appeal. ap- including In each Attorney Pennsylvania, advising General of peal, Attorney General chose to inter- challenged that the cases the state laws in constitutionality defend vene or question, giving thus the Commonwealth an challenged laws. opportunity to intervene to defend them. See

316 justify interests why those to show state interests precise supplant

Court] to cross-nom- major parties to permitting suppo other with by the State forward put the minor forbidding inate, while Furthermore, analysis is sitions”). our may interests While doing so. from assert interests state the four confined to of Tim- light in sufficiently weighty District to Department by the ed fusion, on ban general a justify to mons failure that established “It is well Court.11 to weighty sufficiently they are not con court in the district issue raise an to major between that discriminates a ban Bren argument.” waiver stitutes parties. and minor Carpen 514, Bhd. United v. Local ner Cir.1991). (3d 1283, ters, 1298 F.2d 927 is insuf- justification First, loser the sore level applicable satisfy the I, to ficient Party in Patriot As summarized ex- As the scrutiny. intermediate interests four state advanced I, “are losers sore in Patriot “(1) plained ‘sore preventing Court: the District primary major party lose a who candidates (2) individu- candidacies; preventing loser’ party a minor on running on but insist the bal- ‘monopolizing’ from candidates al 265. Id. at election.” general (3) in the confusion; ticket pre- causing voter lot recog- recently court of this Another off ‘bleed[ing] from candidate venting a disaffiliation loser that sore nized his to bolster voters independent votes of Alternative upheld. Council have been endorsement’; and party major her or Hooks, F.3d 121 v. Parties Political as in- to run new candidates encouraging Brown, Cir.1997) v. (citing Storer (3d I, F.3d at dependents.” 39 L.Ed.2d 94 S.Ct. purported four to all respect With 264. (1974)).12 by the interests, is made effort no state that, "[b]e- panel concluded n. 6. The assert argument, the At oral no shown interest Department has time, major allowing ed, cause for the first not argument, we will local of line of pursuing the five this for in party cross-nomination if we making Even opinion.” those in interest it this in state dwell fices served De re- partisan. The latest Department’s less nonpartisan or offices to consider were its argument in this to raise find state failure this partment’s we would position, versal briefs, District well as before the Depart- appeal again, the persuasive. Once interest argument. Court, for the be fatal alone alleged would why a voter’s explain does not ment it in unless a raises waived is "An issue "pure” candidates knowing which in interest brief, purposes 'a and for those opening dis- justifies a cross-nomination will refuse ... will not issue to an passing reference parties. against minor crimination ’’ court.’ bring issue before suffice Corp., Wheeler v. Int'l Union Foster Laborers’ Storer, in relied in Timmons Court 12. The Cir.1994) (3d (quoting Sim 26 F.3d statute "upheld a California the Court F.2d Philadelphia, 947 City mons independent positions ballot denied (Beck Cir.1991) (3d opinion) (plurality immediately voted in the had who er, this state J.)). consider were Even if we regis had a or primary elections preceding us, however, interest, persuade it does during the at time party affiliation tered explain why Department fails primary elections.” the same year before for discrimina or allows requires the interest Storer, (citing S.Ct. at against minor tion 1274). disaffiliation atU.S. addition, following the Department, however, Storer, differs provision in assert a tries to now dissent in re one crucial in at least Pennsylvania laws partisan voters ensuring that in noted that in Timmons spect. The Democrat "pure” for a to vote who wish discrimi Storer, "did not challenged law the time at Republican know Tim independent candidates." nate candi- party primary whether Storer, 415 mons, at 1374 party cross-nomina- accept minor date will Indeed, 1274). de arguing Department, tion. The statute, the Court California scribing the panel, Party I the Patriot this case before that, the fact apart from observed Storer had the Commonwealth "never asserted "qualify needed independent an partisan vot- protecting any such interest demonstrating substantial ballot possibility ers, suggested as a after was even way than other some support” public F.3d at argument.” oral panel Hooks, however, rejected even less weight Indeed, here. the fact Jersey’s attempt New early filing that the Pennsylvania laws discriminate deadlines on the grounds they pre- between major and parties under- candidacies, vented sore loser stating that mines this interest, asserted because ma- “they are both too jor broad ... party (which and too nar- cross-nomination is al- Anderson, lowed) row.” would seem pose just as large 1564). 805 & n. S.Ct. risk Similarly, of voter Moreover, confusion. as Pennsylvania laws panel at issue here cannot I, observed in Patriot Party justified as “the preventing loser presented sore candi- no evi- dacies because dence they are too broad indicate and too that fusion is likely to produce narrow. As the crippling noted in proliferation of minor I, parties.... the Pennsylvania Furthermore, only “pre- laws vent sore retains the loser authority candidacies insofar as to set they reasonable prevent a threshold requirements candidate who failed to win for ei- seek- ing ther party admission to primary from running as ballot.” I, a minor F.3d at candidate in the general election.” Patriot Party 95 F.3d at 265. The Department also asserts that allow- broad, laws too because ing by cross-nomination minor candidates they bar a third party from nominating a will allow a candidate to bleed off votes of candidate such as Ms. Childress even independent voters to bolster his or her though she did not lose primary either major party endorsement. This in- race and was thus not a sore loser. They terest was not raised in the Timmons are too narrow they pre- do not case, reject and we it here. As the panel vent candidates like Mr. Eshenbaugh from pointed out in Patriot Party “[c]ross continuing on as the Democratic candidate nomination will not increase a par- even though he had Republican lost the ty’s share of minor party votes unless the primary. minor party voluntarily nominates the ma- jor party candidate as its own.” Id. at 267. Next, asserts a state Indeed, allowing the major parties interest in preventing voter confusion and may eross-nominate serve to actually bleed ballot clogging monopoliza- caused off votes, minor party as an individual who tion of the ballot minor candidates supports a minor party’s platform but does and the proliferation of parties. The De- not want to waste a vote on a minor candi- partment, however, explain does not why may date cast a ballot on a instead candi- minor prevented can be date who has been nominated both monopolizing the ballot and causing voter major parties. again, Once the fact that confusion when major parties are al- major parties are allowed to cross-nomi- lowed to do so through major party nate proffered undermines this state inter- cross-nomination. In upholding Minneso- est. ta’s general ban, fusion the Court Timmons specifically disclaimed Finally, reliance argument the lav/s alleged state’s interest in avoiding serve an encouraging new can- Timmons, voter confusion. 117 S.Ct. at didates to run independents is also un- 1375 n. 13. This asserted interest carries dermined by fact that major parties standing election, for primary sonable, qualifi- "the politically regulations neutral required cations independent of the have the channeling effect expressive activ " to, with, are very similar or identical those polls.' at the ities] imposed Storer, candidates.” Burdick, (quoting 437-38, 504 U.S. at U.S. at 94 S.Ct. 1274. 2059). Because Similarly, the Court in quoted Timmons discriminate Takushi, from its decision in Burdick v. are not politically neutral. "

saying ‘we repeatedly upheld have rea- Conclusion V. the Common- “If eross-nominate.

may by minor cross-nomination bans wealth holding reaffirm We for encourage new parties to Ann. Pa. Stat. cross- prohibit logically office, it should Patri- 2911(e)(5) violate §§ same Party’s ot cross- ban across-the-board An reason. of candi- banning cross-nomination laws par- major require would local certain parties by minor dates candidates, thus own their nominate ties Therefore, affirm we will elections. in the candidates of number increasing Rule denying Court District of the orders competi- of electoral level and the field (No. 97- case Eshenbaugh’s 60(b) relief statuto- current anything, If tion.” for judgment summary 3359) granting and independent discourage may ry scheme (No. case Party in Childress’s the Patriot against two three-way race A candidates. District 96-3677). injunction of be formida- would major party of Paragraph Court, appears itas candidate. independent for an enough ble 9, December of Order Court’s District an face would candidate independent An However, written. 1996, as is affirmed a running against challenge greater even protection on equal we affirm par- because major both nominated candidate the Childress remand will we grounds, ties. District instructions case with of the each sum, unpersuasive find 3 of Paragraph from delete Court offered has interests un- free association phrase “to Order discriminato- Pennsylvania’s of support Amendments and Fourteenth der First Penn- The fact that statutory scheme. ry Constitution, and”.13 of the engage sylvania allows elections, local in certain cross-nomination doing, from so minor

but forbids McKEE, Judge, concurring: Circuit in vi- discrimination” “invidious constitutes hold- majority’s fully with I concur right parties’ of olation decision Supreme Court’s ing that facially dis- the laws. of Area New Twin Cities v. Timmons a imposes laws nature of the criminatory of review Court’s not affect does a than on burden heavier anti-fusion discriminatory Pennsylvania’s type considered of the ban fusion general Protection Clause. Equal under laws the Tim- Moreover, unlike in Timmons. majority’s conclu- in the concur I further in this case, mons here at issue anti-fusion sion “sufficiently “important” no offered Clause. Protection Equal violate even justify, interests that weighty” that, Equal believe, under the discrimi- scrutiny, intermediate under dis- both Clause, a law when Protection imposed on natory burdens into any referred office for candidate ot the District 4 of Paragraphs 3 and 13. 2870(0, Code, § 2870(f) 25 P.S. 9, Section state: of December Order major party also a person is 976(e) 951(e)(5) DC, Article Sections 3. 1933, 1937, office. Pennsyl- for P.L. June the Act of code) from Code, hereby enjoined (the 25 P.S. are Defendants vania Election (Sections 2936(e) Sections provisions 2911(e)(5) enforcing §§ 2911(e)(5) 2936(e)) an to be prevent declared are 2911(e)(5) the Code plain- right of nominating a unconstitutional burden party from political a minor County, to tiff, Allegheny Party of the Patriot Section to in referred office candidate for 2870(f) Four- First and free association that candidate Code because °f the Constitution, and teenth Amendments party nomination for petition files the Four- law under equal protection as a candidate isor nominated to that office insofar to the Constitution teenth Amendment aof primary election in the that office political plaintiff, a minor prohibit party. Patri- any person as a nominating party, criminates and Brown, burdens fundamental 415 U.S. 94 S.Ct. right, strict scrutiny, rather than interme (1974) 39 L.Ed.2d 714 (applying Williams diate scrutiny, applies. Jeter, See Clark v. v. Rhodes strict scrutiny to review ballot 456, 461, U.S. 108 S.Ct. 100 restrictions independent candidates); (1988) (“Classifications L.Ed.2d 465 based Illinois State Bd. Elec. v. Socialist on race or national origin and classifica Workers, 184-86, U.S. tions affecting fundamental are rights giv 983, (1979) (applying strict (internal en the most exacting scrutiny.”) scrutiny standard to disparate review quotations omitted); Nordlinger Hahn, nominating requirements); also, see e.g., 1, 10, 2326, 120 L.Ed.2d Harper v. Virginia Elec., State Bd. (discriminatory statutes that inter 16 L.Ed.2d fere with a fundamental subject (1966) (“close scrutiny” applied to poll judicial strict scrutiny); Kadrmas v. tax, which discriminates on the basis of Schools, Dickinson Public 450, 487 U.S. wealth, because fundamental right infring- 457-58, 2481, 108 S.Ct. 101 L.Ed.2d 399 ed); Carter, Bullock v. 134, 405 U.S. 142- (1988) (same). 44, 92 849, S.Ct. 31 (1972) L.Ed.2d 92 The classification here must be narrow- (applying Harper standard to filing fee ly tailored to serve a compelling State in- system). terest survive an Equal Protection As the Supreme Court recognized in challenge. Indeed, the Supreme Court Timmons, laws, anti-fusion like the at ones repeatedly applied precisely this stan- here, issue burden First and Fourteenth dard to review ballot restrictions which Amendment associational rights. Tim disparately infringe upon First Amend- mons, 351, 357-58, 117 520 U.S. 1364, S.Ct. ment rights. See, associational e.g., 137 (1997); L.Ed.2d 589 see also v. Munro Rhodes, Williams v. 23, 31, 393 U.S. 89 Socialist Workers Party, 479 U.S. 5, (1968) (In S.Ct. 21 L.Ed.2d 24 review- 533, (1986) L.Ed.2d ing a ballot applicable restriction only to (recognizing that balloting eligibility parties, the Court “In stated: de- requirements for minority party candi termining whether power the State has dates impinge fundamental place associational unequal such burdens on a minority rights); Celebrezze, v. group Anderson [associational where U.S. rights] 780, 786-87, 103 stake, 1564, 75 L.Ed.2d decisions of this Court have (1983) (same); Williams, consistently held ‘only U.S. at 30- compelling (same). state S.Ct. 5 in the regulation determining of a sub- ject within the whether the State’s burdens pow- actually constitutional violated the er to can First regulate Amendment, justify the Court limiting First stated: ”) Amendment freedoms.’ (quoting Regulations imposing severe burdens on Button, NAACP v. 371 U.S. .plaintiffs’ rights must narrowly be tai- (1963)); American lored advance compelling state White, Texas v. burdens, interest. Lesser trig- L.Ed.2d ger review, less exacting and a State’s (“We agree with the District Court that “important regulatory interests” will whether qualifications for ballot posi- usually “reasonable, be enough tion are viewed as substantial burdens on nondiscriminatory restrictions.” to associate or as discrimina- tions 2% of polling 117 S.Ct. 1364 vote, last added). election validity (emphasis their depends Thus, the Court’s deci- upon whether are necessary to fur- sion in apply Timmons to a less exacting ther compelling interests,” which standard of premised review was on the cannot be served “equally in signifi- well fact that the Minnesota anti-fusion laws cantly less ways!”); burdensome Storer were nondiscriminatory. That is not our interests beyond the going fications anti-fusion dis- Pennsylvania’s case: decision court’s in view the mi- between criminate case, respect 96-3677, with Childress’s No. Therefore, assuming even

nor claim, Depart- to the ap- in Timmons used standard relief effective obtain cannot ment context, I Amendment in the First plies 97-3359. No. merits Protec- Equal application doubt its 96-3677, No. result in join tion context. I in the While Childress, opinion respect with anti-fu- Thus, dis- I must far and thus too goes plainly discriminatory and bur- are both sion laws Par- dissenting in it. sent I believe that right, a fundamental den following point: I, I made the ty doc- Equal Protection under established reasonably could that it recognize I Pennsyl- strictly scrutinize must trine we avoid could argued that minori- discriminatory treatment vania’s mi- by requiring identify I problem the anti-fusion under candidates ty party their to select nor majority’s agree with laws. Because Of election. primary prior restrictions do ballot conclusion restrict course, condition would muster even constitutional pass flexibility and would party’s scrutiny exacting the less event, any of its own. problems have they that necessarily follows majority, could party that a minor possibility the heightened the pass muster do not the before its designate Ac- I that advocate. scrutiny standard affect does primary election re- majority’s in the I concur cordingly, Rather, this case I take analysis. my sult. to the presented it has been which basis on the and on appeal GREENBERG, Judge, Circuit it, which is whether majority decides dissenting: concurring and unconsti- are statutes opinion in court’s join and I concur Thus, case.” in this applied “as tutional motion under Department’s denying possibility that I do address 60(b)(6). following add the I Fed.R.Civ.P. be uncon- might statutes that regard comments, with in in situation applied if stitutional in our decision the time of By motion. its nominat- party files 1996, 9, September Party I on Patriot for, even primary before ing papers in certiorari granted had Supreme Court in that would be unconstitutional they if McKenna, Party v. New Area Twin Cities circumstance, validly applied can be Cir.1996). (8th See McKenna 196 F.3d 73 The First v. Commonwealth See here. Party, New Area v. Twin Cities 702, 705- School, A.2d Pa. L.Ed.2d 947 nomi- (1977). Party Here the Patriot every had (1996). Thus, primary, Eshenbaugh after nated Supreme that the to believe reason nomination accepted its he portion least would review court time, district and both the in Patriot opinion our underlying theory the case adjudicated majority Moreover, in Patriot I dissented Party I. I. so do basis Allegheny Party Patriot See I F.3d at 271. Elections, 95 F.3d Dep’t County contemplated I circumstances Nevertheless, face of Cir.1996). (3d fact might arise I signs, the encouraging these because, case in Childress’s pass came to Par- in Patriot certiorari not to seek chose out, “per- Childress majority points as the Therefore, difficult be it would I ty one of the nomination as her 60(b)(6) motion. fected Rule granting pa- by filing Party’s candidates rami- Moreover, though this even pers Department” with May regard without when the candidate 1995, “before the municipal elec- primary cross-files, the majority goes too far. Majority Op. tions.” at 309. Accordingly, close making one more point. A question for the court resolve in No. court sometimes must declare a stat- 96-3677 should not be whether 25 Stat. Pa. ute unconstitutional. Nevertheless should §§ 2911(e)(5) Ann. are uncon- not, court, aas federal be restrained in stitutional as violating a minor party’s taking such action? The Supreme Court protection of the laws. of Pennsylvania in Commonwealth v. The Rather, question should be whether School, First 471 Pa. 370 A.2d the statutes are unconstitutional as violat- (Pa.1977), 705-07 made it clear if ing a minor party’s right equal protec- statute be can applied constitutionally tion of the law when candidate declares some situations then a court should so her intent to cross-file before a primary apply all, it. After 1 Pa. Cons.Stat. Ann. Indeed, election. itself § added) (emphasis provides: well point understands this because in its brief No. it explains 96-3677 that “[t]he The provisions of every statute shall (Patriot II) present case was also filed as any severable. If provision any ’ an ‘as applied challenge after County statute or the application thereof permit refused to the Party [to] nominate person or invalid, circumstance is held (Barbara Childress) another candidate statute, remainder of the and the municipal the 1995 cycle.” election Br. at application provision such to other (emphasis added). persons circumstances, shall not be I will accept the result thereby, unless statutes the court finds affected in issue are provisions unconstitutional when the valid of the statute to a candidate, so as Chil- essentially and inseparably con- dress, cross-filing before primaries, with, be- nected depend and so upon, the cause a cross-filing void provision before the or application, that can- it primary election may major seek par- both not be presumed the General Assembly ties’ 2936(e) nominations. But sections would have enacted the remaining valid 2911(e)(5) and surely are not unconstitu- provisions one; without the void un- if applied tional parallel- circumstances less the court finds that the remaining ing those Eshenbaugh’s provisions, valid alone, standing are in- Party I because there the candidate was complete and are incapable of exe- being seeking to cross-file at a time when the cuted in accordance with the legislative major parties had selected their candidates intent. primaries at the and thus could no longer We should follow First apply School and nominate cross-filing candidates. It there- section 1925 here because it is clear that fore 2936(e) follows applying sections easily statutes can be applied constitu- 2911(e)(5) and only when a candidate seeks tionally to a minor party’s cross-filing after to cross-file after a primary treats a minor the primary. Moreover, anyone can really party exactly the same as par- believe that the Legislature would ties. Consequently, there simply cannot 2936(e) want 2911(e)(5) sections and ap- an equal protection be problem in those plied to minor party filing candidates after circumstances, as the statutes place do not the primary merely cannot unequal burdens on minor major par- and be to those filing earlier? Surely, Thus, ties. the Department need not dem- Legislature would want the statutes onstrate discrimina- applied so possible. far as is tory treatment major parties, as there is no discriminatory treatment The majority indicates that “[b]eeause justify. Accordingly, in declaring sections permits law fusion by 2911(e)(5) unconstitutional major parties, prohibits but fusion mi- face, discriminato- is, its

nor respect proper 313. A Op. at Maj.

ry.” to the lead us should restraint judicial eliminat- the discrimination

result to fuse allowing the

ed major parties’ with candidates

their candi- major parties’ when the

candidates Instead, other. each fuse with can dates type of discrim- a new majority creates to fuse a minor

ination, it allows those of with candidates cannot major parties’

when Thus, I dissent.

fuse. Laundry; University INC., Coin

WE, t/a University Jr., Schoepe, t/a William

Pinball PHILADELPHIA, Depart OF

CITY Inspections; Licenses

ment of Individually and Paliaga,

Rudolph M. Busi Director of Capacity as His Enforcement Regulatory

ness Inspec

Department of Licenses Philadelphia; City of

tions for Pennsylvania;

University Maureen Individually In Her Official

Rush, Opera Police Director of

Capacity Pennsylva University of

tions for

nia Trust Pennsylvania,

University of a/k/a University of

ees Rush, Appellants

and Maureen

No. 97-1958. Appeals,

United States Circuit.

Third 14, 1998. Sept.

Argued 1, 1999. April

Decided

Case Details

Case Name: Reform Party of Allegheny County v. Allegheny County Department of Elections Mark Wolosik, Director of the Allegheny County Department of Elections

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 30, 1999

Citation: 174 F.3d 305

Docket Number: 96-3677, 97-3359

Court Abbreviation: 3rd Cir.