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

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

9-9-1996

Patriot Party Allegheny v. Allegheny Co. Dept of

Elections

Precedential or Non-Precedential:

Docket 95-3385

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation

"Patriot Party Allegheny v. Allegheny Co. Dept of Elections" (1996). 1996 Decisions. Paper 68.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/68

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-3385

PATRIOT PARTY OF ALLEGHENY COUNTY

v.

ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS;

MARK AS DIRECTOR OF THE ALLEGHENY COUNTY

DEPARTMENT OF ELECTIONS

THE PATRIOT PARTY

OF ALLEGHENY COUNTY,

Appellant.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 93-cv-01884)

Argued March 28, 1996

Before: GREENBERG, ROTH and ROSENN, Circuit Judges

(Opinion Filed September 9, l996)

Cornish F. Hitchcock, Esq. (Argued)

David C. Vladeck, Esq.

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009-1001

Sarah E. Siskind, Esq.

Davis, Miner, Barnhill & Galland

44 East Mifflin Street

Suite 803

Madison, Wisconsin 53703

William A. Weiler, Jr., Esq.

Weiler & Weiler

4762 Liberty Avenue

Pittsburgh, PA 15224

Jonathan B. Robison, Esq.

712 Allegheny Building

429 Forbes Avenue

Pittsburgh, PA 15219

Attorneys for Appellant

Ira Weiss, Esq.

County Solicitor

Allan J. Opsitnick, Esq. (Argued)

Assistant County Solicitor

Office of Allegheny County Law Department

445 Fort Pitt Boulevard

300 Fort Pitt Commons Building

Pittsburgh, PA 15219

Attorneys for Appellees

OPINION OF THE COURT

ROTH, Circuit Judge

The Allegheny County Patriot Party ("Party") alleges

that two Pennsylvania election laws have prevented it from

nominating its chosen candidate for school director, in violation

of the Party's First and Fourteenth Amendment right of free

association as well as its Fourteenth Amendment right to equal

protection of the laws. The challenged laws, 25 Pa. Stat. Ann.

§§ 2936(e) and 2911(e)(5), prevent a minor political party from

"cross-nominating" a candidate for political office when that

candidate has already been nominated for the same office by

another political party. The Party seeks declaratory and

injunctive relief pursuant to 42 U.S.C. § 1983 to prevent

enforcement of the challenged Pennsylvania laws in future

elections.

We hold that the challenged sections of Pennsylvania's

election code violate the Patriot Party's right of free

association and its right to equal protection of the laws. The

state election laws severely burden the Party's right to choose

its standard-bearer and build its political organization, without

supporting a compelling countervailing state interest. They also

facially discriminate against minor political parties and their

supporters. We will therefore reverse the judgment of the

district court, enter judgment for the Patriot Party, and remand

the case for further proceedings consistent with this opinion.

The district court properly asserted subject matter

jurisdiction under 28 U.S.C. §§ 1331 and 1343(3)-(4). We have

jurisdiction of the district court's final order pursuant to 28

U.S.C. § 1291.

I.

The facts of this case are not in dispute. The

Pennsylvania Election Code explicitly allows candidates for

certain local offices, including school director, to be nominated

by both major parties. 25 Pa. Stat. Ann. § 2870(f). Pursuant to

the Code, several candidates for school director in

Pennsylvania's North Allegheny School District sought the

nominations of both the Democratic and Republican parties in the

May 1993 municipal primary. Three candidates were nominated by

both major parties to run in the November 1993 general election

for the four available four-year terms. In addition, Michael

Eshenbaugh sought the nomination of both major parties for the

one available two-year term. Although Eshenbaugh was nominated

by the Democratic Party, he lost his bid for the Republican

nomination.

In July 1993, the Patriot Party of Allegheny County, a

minor political party, see 25 Pa. Stat. Ann. §§ 2831(a)-(b) and

2872.2, nominated four candidates for school director in the

North Allegheny School District. Eshenbaugh was one of the

Patriot Party nominees, and he willingly accepted his nomination

by the Party. Two sections of the Pennsylvania Code, however,

voided the Patriot Party's nomination of Eshenbaugh, because he

had already sought the nomination of the major political

parties. By letter dated August 10, 1993, Mark Wolosik,

Director of the Allegheny County Department of Elections ("the

Department"), explained that because Eshenbaugh had previously

filed nomination petitions seeking the nominations of the major

parties, Pennsylvania law prohibited him from filing nomination

papers to run on a minor party ticket. Wolosik cited 25 Pa.

Stat. Ann. § 2936(e) as the authority for his ruling, without

noting that § 2911(e)(5) also prevented Eshenbaugh's dual

candidacy. See supra note 1.

The Patriot Party challenges the constitutionality of

25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) as applied in this

case to prevent the Party from nominating Eshenbaugh. Because

both parties agreed that the facts were undisputed, the district

court treated the Department's motion to dismiss and the Patriot

Party's motion for summary judgment as cross-motions for summary

judgment. See Patriot Party v. Allegheny County Dep't of

Elections & Mark Wolosik, No. 93-1884, slip op. at 2 n.1 (W.D.

Pa. June 7, 1995) (hereinafter Patriot Party). The district

court denied the Patriot Party's free association and equal

protection claims, holding that the state's legitimate interest

in regulating its ballot justified the restraints that the

election code placed on minor parties. Patriot Party, slip op.

at 11.

Our review of the district court's grant of summary

judgment is plenary. Wheeler v. Towanda Area School Dist., 950

F.2d 128, 129 (3d Cir. 1991); Public Interest Research Group of

N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d

Cir. 1990), cert. denied, 498 U.S. 1109 (1991). We apply the

same test the district court should have applied initially.

Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976),

cert. denied, 429 U.S. 1038 (1977).

II.

Before reaching the merits of the Patriot Party's

challenge, we must determine whether this controversy is

justiciable. Eshenbaugh, running on the Democratic ticket only,

won the two-year term vacancy for school director in the November

1993 election. Patriot Party, slip op. at 3 n.3. As a result,

we must ensure that this case has not been mooted by the fact

that the election in question has taken place and by Eshenbaugh's

success in that election. "An action becomes moot when '(1)

there is no reasonable expectation that the alleged events will

recur . . . and (2) interim relief or events have completely

eradicated the effects of the violation.'" Zellous v. Broadhead

Assoc., 906 F.2d 94, 100 (3d Cir. 1990) (quoting Ames v.

Westinghouse Electric Corp., 864 F.2d 289, 291-92 (3d Cir.

1988)).

Although the 1993 election has come and gone, the

district court found that "[i]f it were permitted to do so, [the

Patriot Party] would nominate a candidate who, like Mr.

Eshenbaugh, has sought the nomination in the primary election by

both major parties and who has succeeded in winning the

nomination of one of those parties." Patriot Party, slip op. at

5. Since this case was filed, the Patriot Party has also

challenged the Department's decision to reject the Party's cross-

nomination of a candidate who was nominated by both the

Democratic and Republican parties. See Patriot Party of

Allegheny County v. Wolosik, Civ. No. 95-1175 (W.D. Pa.).

Although this latter controversy differs from our factual

scenario, it indicates the likelihood that cross-nominations by

third parties will continue to vex the Pennsylvania Department of

Elections and the courts.

Because cross-nominations by minor political parties

are still prohibited by the Pennsylvania election laws, this case

is capable of repetition, yet evading review. Norman v. Reed,

502 U.S. 279, 287-88 (1992) (citing Moore v. Ogilvie, 394 U.S.

814, 816 (1969)). There is "every reason to expect the same

parties to generate a similar, future controversy subject to

identical time constraints . . .." Id. We hold therefore that

this case is justiciable.

III. Freedom of Association

States have broad power to regulate the time, place,

and manner of elections, but they must do so within the limits

established by the First and Fourteenth Amendments to the U.S.

Constitution. Eu v. San Francisco County Democratic Cent. Comm.,

489 U.S. 214, 222 (1989). The protection of the First and

Fourteenth Amendments extends to partisan political organizations

as well as to individuals. Id. at 224 ("It is well settled that

partisan political organizations enjoy freedom of association

protected by the First and Fourteenth Amendments") (citing

Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217

(1986); Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality

opinion)). Thus, a political party, such as the Patriot Party,

may challenge state regulations that allegedly burden its

fundamental constitutional right to freedom of association. See,

e.g., Eu, 489 U.S. 214; Tashjian, 479 U.S. 208.

Although no dispositive precedent explicitly discusses

cross-nomination, a number of Supreme Court decisions touch upon

the rights of political parties. These cases set out a general

framework for analyzing constitutional challenges to state

election laws. Norman, 502 U.S. at 288-89; Anderson v.

Celebrezze, 460 U.S. 780, 788 (1983). The Court generally

applies a fact intensive balancing test that weighs the burden

that the state election law places on a political party against

the state's asserted justification for the law.

To determine whether a state election law violates the

U.S. Constitution, we first examine whether the challenged law

burdens rights protected by the First and Fourteenth Amendments.

Eu, 489 U.S. at 222. If the law does burden protected rights, we

must gauge the character and magnitude of the burden on the

plaintiff and weigh it against the importance of the interests

that the state proffers to justify the burden. Norman, 502 U.S.

at 288-89; Anderson, 460 U.S. at 789. We examine not only the

legitimacy and strength of the state's proffered interests, but

the necessity of burdening the plaintiff's rights in order to

protect those interests. Anderson, 460 U.S. at 789. If the

burden on the plaintiff's rights is severe, the state's interest

must be compelling and the law must be narrowly tailored to serve

the state's interests. Norman, 502 U.S. at 289; Eu, 489 U.S. at

222; see also Twin Cities Area New Party v. McKenna, 73 F.3d 196,

198 (8th Cir. 1996), cert. granted, 116 S. Ct. 1846 (1996); Swamp

v. Kennedy, 950 F.2d 383, 385 (7th Cir. 1991), cert. denied, 505

U.S. 1204 (1992)). We proceed, therefore, by first examining

the burden that the challenged Pennsylvania election laws place

on the Patriot Party's constitutional rights. We then consider

the justification that Pennsylvania has proffered to support the

imposition of this burden.

A. Burden on the Patriot Party

The Patriot Party alleges that the State's prohibition

of cross-nomination by minor parties infringes upon its First and

Fourteenth Amendment right of free association in two ways.

First, the restriction prevents the Party from nominating the

standard bearer who the Party thinks will "most effectively

advance [its] program and platform." Second, the challenged

election laws deprive the Patriot Party of an opportunity to

"fuse" its votes with those of a major party and thereby to make

inroads into the political process. We consider these alleged

burdens in turn.

An "antifusion statute" that prevents a political party

from nominating its candidate of choice burdens a political

party's First and Fourteenth Amendment rights. The Supreme Court

has recognized that "[f]reedom of association also encompasses a

political party's decisions about the identity of, and the

process for electing, its leaders." Eu, 489 U.S. at 229-30

(citing Democratic Party of the U.S. v. Wisconsin, 450 U.S. 107,

123-24 (1981) (State cannot dictate process for selecting

delegates to national convention) and Cousins v. Wigoda, 419 U.S.

477 (1975) (State cannot dictate who may sit as convention

delegate)). In Eu v. San Francisco County Democratic Cent.

Comm., for example, the Court reviewed the constitutionality of

California election laws that, inter alia, prohibited the

governing bodies of various political parties from officially

endorsing candidates in their own party primaries. 489 U.S. at

216. The Court stated that

[f]reedom of association means not only that an

individual voter has the right to associate with the

political party of her choice, . . . but also that a

political party has a right to "identify the people who

constitute the association," . . . and to select a

"standard bearer who best represents the party's

ideologies and preferences."

Id. at 224 (emphasis added) (citations omitted). The Court

recognized that the State's ban on endorsement by the party

leadership was "clearly a restraint on the right of association,"

id. at 225 (citing Citizens Against Rent Control/Coalition for

Fair Housing v. Berkeley, 454 U.S. 290, 296 (1981)). It held

therefore that because the state ban on party endorsements

burdened free speech and free association, it could survive

constitutional scrutiny only if it served a compelling

governmental interest. Id. at 225.

Dicta from Tashjian v. Republican Party of Connecticutalso

indicates that political parties have a protected interest

in selecting their own candidates, even if the nominee is not a

party member. The Court explained:

Were the State to . . . provide that only Party members

might be selected as the Party's chosen nominees for

public office, such a prohibition of potential

association with nonmembers would clearly infringe upon

the rights of the Party's members under the First

Amendment to organize with like-minded citizens in

support of common political goals.

479 U.S. at 215; see also id. at 235-36 (Scalia, J., dissenting)

("Nor is there any question of restricting the ability of the

Party's members to select whatever candidate they desire").

Like the state election laws in Eu and the hypothetical

restriction in Tashjian, the Pennsylvania election laws prohibit

a political party from associating with its candidate of choice.

Eshenbaugh was the Patriot Party's chosen standard bearer, and he

was willing to serve as the Party's candidate. Nevertheless,

Pennsylvania's election laws denied the Party the right to

nominate him. By denying the Patriot Party the right to choose

its standard bearer, the Pennsylvania election laws burdened the

Party's right of free association. See Eu, 489 U.S. at 229-30

(citing Democratic Party of the U.S., 450 U.S. at 123-24 and

Cousins, 419 U.S. 477); Tashjian, 479 U.S. at 215.

The fact that the state election law in this case

prevented the Patriot Party from nominating only a handful of

candidates (those who had already sought the nomination of other

political parties) does not necessarily lessen the burden on the

Party's associational rights. In order to assess this burden, we

must look to the actual effect that the restriction will have on

the party. An analogy to Norman v. Reed illustrates this point.

In Norman, the Supreme Court reviewed an Illinois decision that

barred appellees from appearing on the ballot in a Cook County

election as members of the Harold Washington Party ("HWP"). 502

U.S. at 282. State law prohibited appellees from using the HWP

name in Cook County because they had already used that name to

establish a party in Chicago. Id. at 286-87. The state court

decision, if upheld, would thus have prevented a political party

already established in one locality from branching into other

parts of the state under the same name.

The Supreme Court reversed the state court decision and

held that the court's application of the Illinois law violated

the HWP's First Amendment right of free association. Id. at 290.

Even though the statute prevented new political parties from

using only a handful of names (those names adopted by preexisting

parties), the Court looked to the actual effect that the

restriction would have on the HWP. According to the Court, the

state court's "Draconian construction of the statute would

obviously foreclose the development of any political party

lacking the resources to run a statewide campaign." Id. at 289.

Thus, the fact that the restriction in Norman was so

narrowly tailored that it prevented a political party from

choosing only the few names that had already been chosen by other

political parties was not dispositive. The Court looked instead

to the effect that the law would have on the HWP's efforts to

organize within the state. Likewise, the fact that the

Pennsylvania laws prevent minor political parties from choosing

only a few candidates is not dispositive. The critical issue,

rather, is the effect of the laws on the ability of minor parties

to participate meaningfully in the political process. SeeWilliam R.

Kirschner, Note, Fusion and the Associational Rights

of Minor Political Parties, 95 Colum. L. Rev. 683, 699 (1995).

As the Court of Appeals for the Eighth Circuit has observed, the

"simplistic view that the [minor party] can just pick someone

else [to be its candidate] does not lessen the burden on the

[minor party's] right to nominate its candidate of choice." Twin

Cities, 73 F.3d at 198 (citing Norman, 502 U.S. at 289). Because

Pennsylvania's election laws prevent the Patriot Party from

nominating its standard bearer of choice, those laws place a

cognizable constitutional burden on the Party's right to free

association.

The Patriot Party next argues that in addition to

nullifying its choice of candidate, Pennsylvania's statutory ban

on cross-nomination burdens the Party's ability to build an

effective political organization. Although most states ban

cross-nomination directly or indirectly, ten states, including

New York, have a tradition of allowing minor parties to appear on

the ballot and "fuse" votes with major parties. See Kirschner,

supra at 683, 685 nn.13-14. In these states, minor parties have

exerted considerable and sometimes decisive influence on the

outcome of local, state, and national elections. Id. at 683,

700-04. At least one historian has documented that in the late

nineteenth century, fusion "helped to maintain a significant

third party tradition by guaranteeing that dissenters' votes

could be more than symbolic protest, that their leaders could

gain office, and that their demands might be heard." Peter H.

Argersinger, "A Place on the Ballot": Fusion Politics and

Antifusion Laws, 85 Am. Hist. Rev. 287, 288-89 (1980).

A brief explanation of vote fusion demonstrates its

importance to minor parties. See Twin Cities, 73 F.3d at 197-98;

Kirschner, supra at 687. In the typical "winner takes all"

election, a party's electoral success depends upon its ability to

win the election or to contribute meaningfully to a candidate's

victory. Minor parties are usually unable to command sufficient

votes to win the general election on their own. Therefore, even

voters who support the minor party's platform are reluctant to

"waste" votes on minor party candidates perceived as having no

serious chance of winning. As the Court of Appeals for the

Eighth Circuit has observed, individuals who support a minor

party are confronted with a no-win proposition; they may "cast

their votes for candidates with no realistic chance of winning,

defect from their party and vote for a major party candidate who

does, or decline to vote at all." Twin Cities, 73 F.3d at 199.

Cross-nomination allows voters to cast their vote for a

minor party without "wasting" their vote on a candidate with no

prospect of winning the election. In states that allow cross-

nomination, several parties may nominate the same candidate. A

voter simply casts his vote for the candidate on any one of the

party lines. The general election votes that the candidate

receives on each party line are added together to determine the

winner. For example, if the Patriot Party had been allowed to

cross-nominate Eshenbaugh for school director, Eshenbaugh would

have been permitted to add the votes that he received on the

Democratic and Patriot Party lines and count all of those votes

toward his election (just as Pennsylvania allowed the three

candidates nominated by both major parties to combine the votes

they received on each major party line). An individual casting

his vote on the Patriot Party line could, therefore, register his

support for the Patriot Party platform without "wasting" his vote

on a third party candidate who stands little chance of being

elected. The Patriot Party notes:

The most vivid example of fusion's benefits for

minor parties occurs where a candidate is elected to

office as the nominee of two parties, one major and one

minor, and the margin of victory is smaller than the

number of votes the candidate received on the minor

party's line. The resulting tally . . . demonstrates

that the minor party's support was crucial.

Appellant's Brief at 6.

By thus demonstrating its electoral appeal, the minor

party may win recognition for its policy positions as well as

increased support from the electorate. If significant numbers of

voters cast ballots for a major party candidate on a minor party

line, the candidate may infer that voters like the candidate's

position on issues that the minor party has raised. The more

apparent popularity of the minor party's platform would enhance

its standing with candidates and with voters and allow the minor

party to compete more effectively for votes.

Moreover, minor political parties are not the step-

children of the American political process. Core First and

Fourteenth Amendment principles protect their rights to organize

and to compete for votes. See, e.g., Williams v. Rhodes, 393

U.S. 23, 31-32 (1968) (noting that laws that give "established

parties a decided advantage over any new parties struggling for

existence" burden right to associate). In a line of cases

including Williams v. Rhodes, Anderson v. Celebrezze, and Norman

v. Reed, the Supreme Court struck down statutes or practices that

unnecessarily burdened the ability of minor political parties to

participate in the political process.

In Williams, the Court reviewed state election laws

that made it "virtually impossible for any party to qualify on

the ballot except the Republican and Democratic Parties." 393

U.S. at 25. The Court found that the election laws substantially

burdened both the right to vote and the right to associate and

that their application only to minor parties resulted in a denial

of equal protection of the laws. Id. at 30-31. In striking the

challenged law, the Court expounded a principle that guides our

analysis:

There is, of course, no reason why two parties should

retain a permanent monopoly on the right to have people

vote for or against them. Competition in ideas and

governmental policies is at the core of our electoral

process and of the First Amendment freedoms. New

parties struggling for their place must have the time

and opportunity to organize in order to meet reasonable

requirements for ballot position, just as the old

parties have had in the past.

Id. at 32.

The principle that the political process should be open

to new parties was vindicated again in Anderson v. Celebrezze,

460 U.S. 780 (1983). In Anderson, a state statute threatened to

prevent independent presidential candidate John Anderson from

appearing on the Ohio ballot. The statute required independent

candidates to file nominating petitions several months before

candidates of political parties were required to file their

documentation. 460 U.S. at 782-83. The Supreme Court found that

the Ohio law effectively prevented late-emerging candidacies

outside the major parties and burdened independent voters in the

gathering of signatures. Id. at 792. The Court noted that

it is especially difficult for the State to justify a

restriction that limits political participation by an

identifiable political group whose members share a

particular viewpoint . . ..

A burden that falls unequally on new or small

political parties or on independent candidates

impinges, by its very nature, on associational choices

protected by the First Amendment. It discriminates

against those candidates and--of particular importance-

-against those voters whose political preferences lie

outside the existing political parties.

Id. at 793-94 (emphasis added) (citing Clements v. Fashing, 457

U.S. 957 (1982)). The Court found that the election laws

interfered with the ability of Ohio's independent voters to

"enhance their political effectiveness as a group" and thereby

"threaten[ed] to reduce diversity and competition in the

marketplace of ideas." Id. at 794.

The core First Amendment principles originally

expounded in Williams and refined in Anderson extend to this

case. By preventing cross-nomination and fusion, Pennsylvania's

election laws burdened the Patriot Party's ability to choose a

candidate and to organize and gain influence in the political

system. The Party was prohibited by law from associating with

Eshenbaugh, despite the fact that Eshenbaugh was the Party's

first choice to be its candidate. It was also prohibited from

forming a consensual political alliance, which would have

eliminated the "wasted" vote problem and allowed the Party to

demonstrate its true electoral strength. Of course, the Party

was still free to organize and to nominate a candidate who had

not been nominated by another political party, but by imposing

its election requirements, the Department undeniably burdened the

Patriot Party's right to associate.

The burden imposed by the Pennsylvania election laws is

compounded by the fact that Pennsylvania permits the two major

parties to cross-nominate candidates. This additional burden is

an important distinction between this case and Twin Cities. In

Twin Cities, Minnesota imposed a ban on fusion by all parties.

Thus, minor parties suffered only from the disparate impact of

the across-the-board ban. The ban on fusion in this case,

however, applies to minor political parties only. See 25 Pa.

Stat. Ann. § 2870(f). Therefore, the Pennsylvania election laws,

unlike the Minnesota laws, discriminate on their face, as well as

in their impact on major and minor political parties.

As a result of this facial discrimination against minor

parties, the effects of the law are even more striking, with

significant ramifications for the Patriot Party's right of free

association. When the major parties cross-nominate a candidate,

as they did in the school board election, a minor party candidate

will be required to attract enough votes on the minor party line

alone to defeat a major party candidate who is allowed to

aggregate the votes that he receives on both major party lines.

Although this argument goes more directly to the Patriot Party's

equal protection claim, see infra Part IV, Anderson reminds us

that "a burden that falls unequally on new or small political

parties" also impinges on associational choices protected by the

First Amendment.

In defense of the statutes, the Department averred at

oral argument that because Pennsylvania's election laws allow

cross-filing by the major political parties in races for three

local offices only, the restriction on cross-nomination by minor

political parties at most imposes a minimal burden on the Patriot

Party's free association rights. Given the relatively minor

status of these offices in the state political structure as a

whole, the Department argued, any burden on the Patriot Party's

First and Fourteenth Amendment right of free association must be

correspondingly minor.

Based on our reading of Norman, we reject this

argument. In Norman, the Court recognized that minor political

parties must often establish themselves at the local level, and

it characterized as "Draconian" a state court ruling that would

have "foreclose[d] the development of any political party lacking

the resources to run a statewide campaign." Norman, 502 U.S. at

289. Thus, the fact that an election law's effects are limited

in scope is not dispositive. Our inquiry focuses on the

practical and legal barriers that the law erects for minor

political parties seeking to establish themselves as viable

political alternatives to the major parties.

The Patriot Party seeks to cross-nominate a major party

candidate in a local election so that it can demonstrate the

popularity of its platform in an election undiluted by the major

parties' organizational dominance. Like Illinois's restriction

on using the HWP name, Pennsylvania's ban on fusion may inhibit a

minor party's transition from fledgling political movement to

statewide political organization. See id. Thus, this narrow

application of the prohibition on cross-nomination does not

eliminate the burden that Pennsylvania's election laws place on

the rights of minor parties.

The two courts of appeals that have addressed this

issue have split on the result. On facts similar to those in

this case, the Eighth Circuit Court of Appeals held that laws

preventing cross-nomination by minor parties severely burden core

First and Fourteenth Amendment rights of free association:

As in Norman, the burden here is severe because

Minnesota's laws keep the [minor party] from developing

consensual political alliances and thus broadening the

base of public participation in and support for its

activities. History shows that minor parties have

played a significant role in the electoral system where

multiple party nomination is legal, but have no

meaningful influence where multiple party nomination is

banned.

Twin Cities, 73 F.3d at 199 (citing Kirschner, supra at 700-04).

As noted above, the burden on the Patriot Party's right of

association in this case is even heavier than the burden imposed

in Twin Cities because unlike Minnesota, Pennsylvania allows

cross-nomination by the major parties. See Anderson, 460 U.S. at

793-94.

The Seventh Circuit Court of Appeals, however, has held

that a "ban on multiple party nominations does not burden the

associational rights of political parties . . .." Swamp, 950

F.2d at 386. The court argued that "[a]llowing minor parties to

leech onto larger parties for support decreases real competition;

forcing parties to chose [sic] their own candidates promotes

competition." Id. at 385. Judges Ripple, Posner, and

Easterbrook dissented from the Seventh Circuit's refusal to grant

rehearing en banc in Swamp.

We note, finally, that burdens on minor political

parties translate directly into burdens on individual voters.

The ban on cross-nomination burdens the associational rights of a

voter who supports a minor party platform but recognizes that his

vote will be a political nullity unless he casts it for a major

party candidate. We do not believe that the First Amendment

imposes an affirmative obligation on states to maximize support

for minor political parties. But in this case, a vote cast for a

party outside the current political mainstream is burdened by

more than the minor party's lack of political support. The

Pennsylvania election code has erected an artificial barrier that

prevents a minor party from forming consensual political

alliances, and individual supporters of the minor party

ultimately bear the burden.

In light of relevant Supreme Court precedent, the

history of fusion, and the practical effect of the challenged

Pennsylvania laws on the Patriot Party's political development,

we find that 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) severely

burden the Patriot Party's First and Fourteenth Amendment rights

of free association. See Twin Cities, 73 F.3d at 198-99.

Pennsylvania, therefore, must demonstrate that these laws are

narrowly tailored to serve a compelling state interest. Norman,

502 U.S. at 289; Eu, 489 U.S. at 222.

B. Pennsylvania's Interest in Banning Cross-Nomination

The Supreme Court recognizes that a state has a

"compelling interest in preserving the integrity of its election

process." Eu, 489 U.S. at 231 (citing Rosario v. Rockefeller,

410 U.S. 752, 761 (1973)). "As a practical matter," furthermore,

"there must be a substantial regulation of elections if they are

to be fair and honest and if some sort of order, rather than

chaos, is to accompany the democratic process . . .." Storer v.

Brown, 415 U.S. 724, 730 (1974). To this end, states necessarily

have adopted comprehensive election codes, id., and "the State's

important regulatory interests are generally sufficient to

justify reasonable, nondiscriminatory restrictions." Anderson,

460 U.S. at 788 (footnoted omitted).

Wolosik and the Department of Elections argue that the

challenged Pennsylvania election laws further four important

state interests: (1) preventing "sore loser" candidacies; (2)

preventing individual candidates from "monopolizing" the ballot

and causing voter confusion; (3) preventing a candidate from

"bleed[ing] off votes of independent voters to bolster his or her

major party endorsement"; and (4) encouraging new candidates to

run as independents. These justifications do not bear scrutiny.

The district court held that the challenged

Pennsylvania laws are justified as a means to prevent "sore

loser" candidates from carrying an intraparty squabble into the

general election. Patriot Party, slip op. at 9-11 (finding

Patriot Party's argument represents "nothing more than a 'sore

loser' situation"). "Sore losers" are candidates who lose a

major party primary but insist on running on a minor party ticket

in the general election. In Storer v. Brown, the Supreme Court

considered a California election law that denied a place on the

general election ballot to any independent candidate who voted in

the immediately preceding major party primary or registered

affiliation with a political party at any time within one year

prior to the immediately preceding primary. Storer, 415 U.S. at

726. The Court upheld the restriction, noting that it works

against independent candidates who might run against a party's

candidate merely to vindicate their own "short-range political

goals, pique, or personal quarrel." Id. at 735. Thus the

restriction helped to prevent "splintered parties and

unrestrained factionalism" by prohibiting unsuccessful primary

candidates from running as independents in the general election.

Id. at 736.

The district court held in this case that the

Pennsylvania election laws, like the California election laws

challenged in Storer, serve an important state interest in

preventing sore loser candidacies. We do not agree. The

challenged laws, as applied in this case, did not prevent a "sore

loser" candidacy. Eshenbaugh was nominated as the Democratic

candidate and was going to run in the general election regardless

of the Patriot Party nomination. Eshenbaugh did not run merely

as an embittered loser of the Republican primary; he was the

Democratic Party's candidate for office. An individual is not a

"sore loser" when he has in fact won a major party primary and

runs in the general election as the standard bearer for a major

party. If Eshenbaugh's unsuccessful quest for the Republican

nomination had involved him in a Republican intraparty squabble,

nothing in the Pennsylvania laws would have prevented him from

carrying that dispute into the general election once he secured

the Democratic nomination. Preventing the Patriot Party from

endorsing the major party candidate in this case could do little

to limit factionalism and intraparty disputes in the manner

contemplated by Storer.

The Pennsylvania election laws prevent sore loser

candidacies insofar as they prevent a candidate who failed to win

either major party primary from running as a minor party

candidate in the general election. The Pennsylvania laws are

overbroad for this purpose, however, and they could easily be

more narrowly tailored to achieve the state's asserted goal of

averting sore loser candidacies. When an individual runs as the

nominee of a major party, he can hardly be accused of making the

general election ballot a "forum for continuing intraparty feuds"

in the manner that concerned California in Storer. 415 U.S. at

735.

We note also that the sore loser justification could

not support the sweeping ban on cross-nomination between minor

parties that is now in place. If an individual runs for and wins

one minor party nomination only, the sore loser argument does not

explain why that same individual should not be permitted to

accept a cross-nomination from another minor party, or, for that

matter, from a major party. So long as the minor party candidate

did not recently lose a primary or participate actively in

another political party, the logic of Storer would not apply to

the minor party candidate's acceptance of a cross-nomination by

another major or minor party.

The Department also attempts to justify the contested

election laws as a means to prevent multiple parties from

nominating the same candidate. The Department argues that a

proliferation of minor parties on the ballot would confuse voters

and clog the state's election machinery. Cf. Bullock v. Carter,

405 U.S. 134, 145 (1972) (state has legitimate interest in

avoiding voter confusion); Tashjian, 479 U.S. at 221 (same).

But cf. Tashjian, 479 U.S. at 218 (noting that administrative

economy and convenience do not necessarily justify infringement

of First Amendment rights).

As a factual matter, there is no evidence in the record

to support the proposition that myriad small parties will "clog"

the ballot if cross-nomination is permitted. In Williams v.

Rhodes, Ohio argued that election laws severely restricting minor

party access to the ballot were necessary to prevent large

numbers of parties from clogging the ballot and confusing voters.

393 U.S. at 33. The Supreme Court observed that

the experience of many States . . . demonstrates that

no more than a handful of parties attempts to qualify

for ballot positions even when a very low number of

signatures, such as 1% of the electorate, is required.

It is true that the existence of multitudinous

fragmentary groups might justify some regulatory

control but . . . at the present time this danger seems

to us no more than "theoretically imaginable." No such

remote danger can justify the immediate and crippling

impact on the basic constitutional rights involved in

this case.

Id. (footnotes omitted).

We believe that this reasoning applies here. The

Department has presented no evidence to indicate that fusion is

likely to produce a crippling proliferation of minor parties.

See Kirschner, supra at 683-85 (describing New York's successful

experience with cross-nomination). Furthermore, Pennsylvania

retains the authority to set reasonable threshold requirements

for parties seeking admission to the ballot. See Illinois

Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184-85

(1979) (citing Lubin v. Panish, 415 U.S. 709, 715 (1974) and

Bullock, 405 U.S. at 145). In short, the Department has offered

no evidence to indicate that the threat of "ballot clogging" in

this case is any more real than the imaginary threat that the

Supreme Court rejected in Williams.

Although cross-nomination could theoretically lead to a

proliferation of minor parties, it might also simplify the

election ballot and increase the amount of information available

to voters. First, cross-nomination might simplify voter choices

by reducing the absolute number of candidates appearing on the

ballot. As more minor parties choose to cross-nominate major

party candidates rather than field candidates of their own, the

number of different candidates appearing on the ballot might

actually decline. See discussion infra (discussing Department

argument that cross-nomination will reduce number of candidates).

Thus, cross-nomination might actually lead to fewer candidates

and a simpler ballot.

Second, if a minor party champions specific issues,

that party's nomination of a major party candidate would signal

to voters the minor party's belief that that candidate best

addresses the minor party's specific concerns. Thus, minor

parties may provide more focused scrutiny of a candidate's

position on issues of importance to voters. We are chary of

policies that restrict voter options or information in the name

of simplicity and orderly administration. As the Supreme Court

said in Anderson:

A state's claim that it is enhancing the ability of its

citizenry to make wise decisions by restricting the

flow of information to them must be viewed with some

skepticism. As we observed in another First Amendment

context, it is often true "that the best means to that

end is to open the channels of communication rather

than to close them."

460 U.S. at 798 (footnote omitted) (quoting Virginia Pharmacy Bd.

v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 779

(1976)); Eu, 489 U.S. at 228; Tashjian, 479 U.S. at 220-222 ("The

State's legitimate interests in preventing voter confusion and

providing for educated and responsible voter decisions in no

respect 'make it necessary to burden [a Party's] rights.'")

(quoting Anderson, 460 U.S. at 221-22). We are not, therefore,

persuaded by the Department's arguments concerning ballot

clogging and voter confusion.

The other two explanations that the Department proffers

to justify the ban on cross-nomination are even less persuasive.

The Department argues first that the ban on cross-nomination

prevents a candidate from "bleed[ing] off votes of independent

voters to bolster his or her major party endorsement."

Pennsylvania apparently is concerned that cross-nomination would

allow major party candidates to win minor-party votes that would

otherwise have gone to minor party candidates. Cf. Swamp, 950

F.2d at 386 (refusing to allow minor parties to "leech onto"

larger parties for support for fear that practice will decrease

real electoral competition). This is not a question of

candidates "bleeding off" minor-party votes, however; it is a

voluntary transfusion of minor party support to the major party

candidate. Cross-nomination will not increase a major party's

share of minor party votes unless the minor party voluntarily

nominates the major party candidate as its own. It is under the

current system that major party candidates "bleed off" minor

party votes. When cross-nomination is prohibited, individuals

who do not want to "waste" their votes may feel compelled to vote

for a major party candidate--even if they support the minor

party's platform.

Finally, the Department argues that "Storer and the

Pennsylvania Election Code recognize[] a public policy of

encouraging new candidates to run as independents and

discourage[] a situation where one candidate could accept a major

party nomination and several other minor party nominations

thereby monopolizing the ballot." The Department argues that

cross-nomination could allow a major party candidate to reduce

the support available for competing independent candidates by

accepting several minor party nominations. This hypothetical

reduction in the support available for minor party candidates

would presumably reduce the number of minor party candidates on

the ballot. This argument sets forth no compelling state

interest, and the Department's reliance on Storer is misplaced.

Storer has little, if anything, to say about the

importance of encouraging new candidates to run as independents.

See Storer, 415 U.S. at 732 (noting states' authority to preventcandidates

from running in general election). The Supreme Court

made clear in Tashjian that Storer was primarily concerned with

protecting political parties from external threats. Tashjian,

479 U.S. at 224. Storer was meant to "prevent the disruption of

the political parties from without, and not, as in this case, to

prevent the parties from taking internal steps affecting their

own process for the selection of candidates." Id. Thus, Storeris simply

inapposite here.

Furthermore, the Department has not demonstrated that a

minor party's cross-nomination of a willing major party candidate

would threaten to disrupt political parties in any way. A minor

party need not nominate a major party candidate and a major party

candidate need not accept the nomination. See discussion, supranote 4.

The availability of cross-nomination as an option would

not prevent minor parties from nominating and supporting their

own distinct candidates if they chose to do so. Pennsylvania has

not demonstrated how the possibility of a consensual political

alliance would threaten political parties from without or

otherwise implicate the concerns outlined in Storer. As we

explained, supra, this is not a "sore loser" situation.

The Department's argument is also undermined by the

fact that Pennsylvania permits major parties to cross-nominate

candidates. If the Commonwealth bans cross-nomination by minor

parties to encourage new candidates to run for office, it should

logically prohibit cross-nomination by major parties for the same

reason. An across-the-board ban on cross-nomination would

require the major parties to nominate their own candidates, thus

increasing the number of candidates in the field and the level of

electoral competition. The Commonwealth has offered no reason

for this distinction between major and minor parties.

We therefore find unpersuasive each interest that the

Department has offered to justify its ban on cross-nomination by

minor parties. The Department bears the burden of demonstrating

that the challenged election laws are narrowly tailored to

protect a compelling state interest. Because a more narrowly

tailored law would prevent sore-loser candidacies, this case

falls outside the ambit of Storer. The Department's other

asserted interests are either unsupported by the record or

insufficient to justify an outright ban on cross-nomination by

minor parties. State regulation of cross-nomination might be

appropriate in some circumstances, but the Department has not

carried its burden in this case. Thus, we hold that

Pennsylvania's prohibition of cross-nomination by minor political

parties violates the Patriot Party's right of free association.

IV. Equal Protection of the Laws

The Pennsylvania election code facially discriminates

between major and minor parties. The challenged statutes, 25 Pa.

Stat. Ann. §§ 2936(e) and 2911(e)(5), operate to prevent cross-

nomination by minor parties, while 25 Pa. Stat. Ann. § 2870(f)

allows the major parties to cross-nominate candidates for school

director and other local offices. The Patriot Party alleges that

this disparate treatment also violates the Party's Fourteenth

Amendment right to equal protection of the laws because it

violates a non-discrimination principle enunciated by the Supreme

Court in Williams v. Rhodes. See 393 U.S. at 32. Because

neither Twin Cities nor Swamp involved a ban on cross-nomination

that facially discriminated against minor parties, we examine for

the first time in a fusion case the issues presented by the

Patriot Party's equal protection claim.

The district court held that Pennsylvania's election

laws do not violate the Patriot Party's right to equal

protection. Patriot Party, slip op. at 11. The court, applying

the same balancing test that it applied to the free association

claim, concluded that the "defendants' legitimate interest in

regulating [the] ballot and election process justifies the

limited restraints placed upon plaintiff by the challenged

provisions of the Election Code." Id. Appellees assert that the

laws should be subject to rational basis review because they do

not create an "invidious, arbitrary, or irrational"

classification and do not apply to a suspect class. They argue

that because the classification is rationally related to a

legitimate government interest in regulating its ballot, it does

not violate the Fourteenth Amendment.

The Supreme Court's major precedent concerning the

equal protection rights of political parties is Williams v.

Rhodes, 393 U.S. 33 (1968). In Williams, Ohio election laws made

it virtually impossible for new or small political parties to be

placed on the state ballot for the selection of presidential and

vice presidential candidates. Id. at 24. Thus, the challenged

laws violated the constitutional guarantee of equal protection

because they "[gave] the two old, established parties a decided

advantage over any new parties struggling for existence and . . .

place[d] substantially unequal burdens on both the right to vote

and the right to associate." Id.

The Court characterized the nature of the equal

protection burden imposed by the Ohio laws from the perspective

of both voters and minor political parties. First, the Court

noted that the election laws placed an unequal burden on voters

who supported new or small political parties because those voters

could not cast an effective vote for their party of choice. Id.at 31.

Second, the election laws placed an unequal burden on

minor political parties themselves because they were excluded

from the ballot and thereby denied an equal opportunity to win

votes. Id. The State election laws burdened protected

constitutional rights because they operated to "stifle the growth

of . . . new parties working to increase their strength from year

to year." Id. at 32.

Against these burdens, the Court weighed Ohio's

arguments in favor of its election laws. The State argued that

its laws were necessary to promote the stability and integrity of

the political system and for administrative efficiency. The

Court examined each of the State's asserted interests in turn,

and concluded that although states have broad powers to regulate

voting, Ohio's laws constituted "an invidious discrimination" in

violation of the Equal Protection Clause. Id. at 31-34.

From Williams, we can extrapolate the first principles

and basic structure of our equal protection analysis. It is

clear that no State may pass a law regulating elections that

violates the Fourteenth Amendment's guarantee of equal protection

of the laws. Williams, 393 U.S. at 29. Of course, "the Equal

Protection Clause does not make every minor difference in the

application of laws to different groups a violation of our

Constitution," id. at 30, but we will examine election laws to

ensure that the distinctions or classifications that they create

are not "invidious" under our precedent. Id.; Patriot Party of

Pennsylvania v. Mitchell, 826 F. Supp. 926 (E.D.Pa. 1993) (citing

Clements, 457 U.S. at 967), aff'd, 9 F.3d 1540 (3d Cir. 1993).

In order to determine whether election laws violate the

Equal Protection Clause, we must measure the totality of the

burden that the laws place on the voting and associational rights

of political parties and individual voters against the

justifications that the State offers to support the law.

Williams, 393 U.S. at 34. As the Supreme Court stated in

Williams: "In determining whether or not a state law violates the

Equal Protection Clause, we must consider the facts and

circumstances behind the law, the interests which the State

claims to be protecting, and the interests of those who are

disadvantaged by the classification." Id. at 30 (footnote

omitted). Thus, our analysis of the Patriot Party's equal

protection claim is similar in many respects to the balancing

test that we applied to its free association claim.

It is undisputed that the Pennsylvania election laws

treat major and minor parties differently. Major parties that

file nominating petitions and hold primaries are permitted to

cross-nominate each other's candidates for school board, see 25

Pa. Stat. Ann. § 2870(f), while minor parties may not cross-

nominate any candidates, see 25 Pa. Stat. Ann. §§ 2936(e) and

2911(e)(5).

The restriction in Williams, which prevented minor

parties from appearing on the ballot, was undoubtedly a more

severe burden on the rights of minor parties than the restriction

imposed by the state election laws in this case. The

Pennsylvania laws do not prevent minor parties from nominating

most individuals or from placing their candidate on the ballot;

they merely prevent minor parties from nominating the few

candidates already nominated by other parties. But seediscussion supra at

__ (discussing Norman v. Reed) [Typescript at

14-15].

Nevertheless, we believe that Pennsylvania's decision

to ban cross-nomination by minor parties and to allow cross-

nomination by major parties constitutes the type of "invidious

discrimination" prohibited by the Fourteenth Amendment.

Pennsylvania's decision to ban some consensual political

alliances and not others burdens individuals who support a minor

party's platform because it forces them to choose among three

unsatisfactory alternatives: "wasting" a vote on a minor party

candidate with little chance of winning, voting for a second-

choice major party candidate, and not voting at all. This burden

would be assuaged if minor political parties were accorded an

equal right to cross-nominate willing major party candidates.

The ban on cross-nomination by minor political parties

also infringes on the the equal protection rights of political

parties themselves. The challenged election laws may prohibit a

minor party from nominating its best candidate and from forming a

critical type of consensual political alliance that would help it

to build support in the community. Thus, the challenged laws

help to entrench the decided organizational advantage that the

major parties hold over new parties struggling for existence.

The ill effects of these laws are further magnified

when the major parties elect to cross-nominate the same

candidate, as they did in the school board election at issue.

When the major parties cross-nominate a candidate, a minor party

candidate must fight an uphill election battle against the

combined strength of two well-organized and established major

parties without even the prospect of forming its own ballot

alliances. If a vote is "wasted" when it is cast for a minor

party candidate running against two major party candidates, it is

a fortiori wasted when the major parties unite behind one

candidate. Such an arrangement is a significant burden on a

minor party's right to equal protection of the laws.

Moreover, Pennsylvania imposes these unequal burdens on

the right to vote and the right to associate without protecting

any significant countervailing state interest. As already noted,

the ban on cross-nomination by minor parties is overly broad if

it is intended merely to prevent sore loser candidacies. The

other interests asserted by the Department on behalf of the

Commonwealth simply do not bear scrutiny. See discussion supraat ___-___

[Typescript at 26-36]. Furthermore, many of the

Department's arguments concerning ballot transparency and voter

choice are undermined by the fact that the Commonwealth allows

cross-nomination by the major political parties.

Pennsylvania's election laws facially discriminate

against minor political parties in a way that diminishes their

ability to organize and to compete effectively in the political

process. The Department offers no compelling justification for

the Commonwealth's facially discriminatory laws. We hold,

therefore, that these facially discriminatory laws create an

"invidious classification" that violates the Equal Protection

Clause of the Fourteenth Amendment.

V. Conclusion

The challenged election laws burden the Patriot Party's

right of free association by preventing the Party from nominating

the candidate of its choice. They also prevent the Party from

fusing its votes with those of the major parties in order to

maximize its appeal to voters and to build its political

organization. Appellees assert no compelling state interest to

justify the election laws as applied in this case, and

Pennsylvania could easily achieve its asserted goal of preventing

"sore-loser" candidacies with a more narrowly tailored law.

Pennsylvania's ban on cross-nomination by minor political parties

therefore violates the Patriot Party's First and Fourteenth

Amendment right of free association.

The laws also violate the Fourteenth Amendment's

guarantee of equal protection of the laws. They discriminate

against minor parties and the voters who wish to support them

without supporting a compelling or even a significant state

interest.

We therefore hold that the challenged Pennsylvania

election laws, as applied in this case, constitute an

unconstitutional burden on the Patriot Party's First and

Fourteenth Amendment rights to free association and equal

protection. We will therefore reverse the judgment of the

district court, enter judgment for the Allegheny County Patriot

Party, and remand the case to the district court for further

proceedings consistent with this opinion.

Patriot Party of Allegheny County v. Allegheny County Department

of Elections, No. 95-3385

GREENBERG, Circuit Judge, dissenting.

I respectfully dissent. As the majority indicates,

this appeal involves a challenge to Pa. Stat. Ann. tit. 25, §§

2936(e) and 2911(e)(5) (1994) "as applied in this case to prevent

the [Patriot] Party from nominating [Michael] Eshenbaugh" as a

candidate for school director in the North Allegheny School

District. Typescript at 5. Eshenbaugh cross-filed for the

office in both the Democratic and Republican primaries. He won

the first but lost the second. Thus, at the time that the

Patriot Party as a minor party attempted to nominate Eshenbaugh

as its candidate, he already was the Democratic candidate.

Everyone agrees that the nomination was thus unlawful under

Pennsylvania law as written.

The majority invalidates the statutory bars to

Eshenbaugh's nomination on First and Fourteenth Amendment

grounds. It finds that the statutes "severely burden the Patriot

Party's First and Fourteenth Amendment rights of free

association." Typescript at 24. It also finds that the statutes

"facially discriminate[] between major and minor parties" in

violation of the Equal Protection Clause of the Fourteenth

Amendment, because they preclude a minor party from participating

in the cross-nomination of a candidate while allowing major

parties to do so. Typescript at 34.

The majority does not suggest that these First and

Fourteenth Amendment problems require the invalidation of the

statutes at issue without further analysis. Quite to the

contrary, it balances the minor party's constitutional rights

with the state's interests in precluding the cross-party

candidacy in question here. It then finds that the state's

interests do not justify the restrictions, and it thus "hold[s]

that the challenged Pennsylvania election laws, as applied in

this case, constitute an unconstitutional burden on the Patriot

Party's First and Fourteenth Amendment rights to free association

and equal protection." Typescript at 40.

I believe that the methodology used by the majority in

its well-drafted and thoughtful opinion is correct. I dissent,

however, because I believe that, as applied in this case, the

statutes serve a compelling state interest. While the majority

expresses concern that the Patriot Party's rights be protected,

it acknowledges that it must consider countervailing interests.

Under the Pennsylvania scheme, a voter in a primary election in

which cross-filing is permitted, will know whether a candidate

has cross-filed or at least that information will be available to

the voter. Thus, the voters in the primary knew or could have

known that Eshenbaugh was seeking both the Democratic and

Republican nominations. That information could be very important

to a particular voter, as many voters are partisan advocates of

one or the other major political parties and only will vote for

candidates from that party. Of course, voters have every right

to that partisan approach. A voter in a primary may refuse to

vote for a candidate who has cross-filed with another major

party, choosing instead to vote for a "pure" Democrat or

Republican.

To the partisan political voter, it might come as a

shock to discover that he or she voted for a closet advocate of a

minor political party. In short, while some people see merit in

fusion tickets, others may be put off by them. I, of course,

express no opinion on this political point. I, however, do

express the opinion that the state has a compelling interest in

ensuring that voters in primary elections not be deceived in the

electoral process. In this case, a voter in the primary election

in May 1993 for school director knew or could have known that

Eshenbaugh was seeking to run as a Democrat and as a Republican

and the voter could take or leave Eshenbaugh on that basis. If

the statutes at issue in this case had been invalidated before

the primary, what the voter could not also have known was that a

vote for Eshenbaugh also would be a vote for the candidate of the

Patriot Party. The majority sees merit in "increas[ing] the

amount of information available to voters," typescript at 29, and

so do I. The problem with the majority's approach is that it

deprives the voter of the crucial information of knowing the

identity of the political parties with which a candidate has an

affinity.

The point I raise should not be shrugged off. Today we

have single-issue political parties. A Democrat or Republican

voter might be opposed completely to the ideology of a minor

party but yet discover after the primary that his or her vote has

contributed to the fortunes of the minor party by nominating its

candidate to run as a Democrat or Republican as well. The

Pennsylvania statutes preclude such stealth situations. The

majority demonstrates its concern that a minor party be able to

"build its political organization." Typescript at 3, 14. What

it overlooks is that a partisan major party voter may not want

his or her vote used to help the minor party in that effort.

I recognize that it reasonably could be argued that

Pennsylvania could avoid the problem I identify by requiring

minor parties to select their candidates prior to the primary

election. Of course, such a condition would restrict the minor

party's flexibility and would have problems of its own. In any

event, the possibility that a minor party could designate its

candidate before the major party primary election does not affect

my analysis. Rather, I take this case as it has been presented

by the parties to this appeal and on the basis on which the

majority decides it, which is whether the Pennsylvania statutes

are unconstitutional "as applied in this case." Thus, I do not

address the possibility that the Pennsylvania statutes might be

unconstitutional if applied in a situation in which the minor

party files its nominating papers before the primary for, even if

they would be unconstitutional in that circumstance, they validly

can be applied here. See Commonwealth v. The First School, 370

A.2d 702, 705-07 (Pa. 1977). Here the Patriot Party nominated

Eshenbaugh after the primary, and he accepted its nomination at

that time, and both the district court and the majority

adjudicated the case on that basis and so do I.

I make one final point. I infer from the majority

opinion that it believes that the result it reaches is dependent

upon the circumstance that Pennsylvania permits major party

cross-filing in school director elections. Certainly my

inference is correct at least with respect to the majority's

equal protection holding, as the majority identifies the

disparate treatment of a minor as opposed to a major party in the

statutory scheme that permits candidates to cross-file in major

party primaries but not to file as both a major and minor party

candidate.

Nevertheless, I do not see how the application of the

free association rights the majority identifies can be cabined to

elections in which the state permits some cross-filing. To the

contrary, it seems logical to me that the majority's approach

inevitably leads to the conclusion that Pennsylvania (and the

other jurisdictions in this circuit) must permit cross-filing in

all elections, so that following any primary election for any

office, a minor party may nominate any willing major party

candidate to be the minor party's candidate in that election.

After all, why are the associational rights of the minor parties

in any way dependent on the circumstance that a candidate could

cross-file in the Democratic and Republican primaries?

For the foregoing reasons I respectfully dissent. In

my view, the Pennsylvania statutes as applied in this case are

constitutional. Furthermore, I believe that the majority opinion

carries implications which could bring about fundamental changes

in the election processes in Pennsylvania and the other

jurisdictions in this circuit by judicial decision. We ought not

to lay the foundation for such a development. If such changes

are to come, let the legislatures bring them about.