Patriot Party Alghny v. Alghny Cty Dept

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

3-30-1999

Patriot Party Alghny v. Alghny Cty Dept

Precedential or Non-Precedential:

Docket 96-3677,97-3359

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Filed March 30, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96-3677 and 97-3359

REFORM PARTY OF ALLEGHENY COUNTY

v.

ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS;

MARK WOLOSIK, Director of the Allegheny County

Department of Elections,

Appellants.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(Civil Action No. 93-cv-01884 and 97-3359)

[District Judge: Honorable William L. Standish

Argued: December 12, 1997

Before: NYGAARD, ALITO, Circuit Judges

and DEBEVOISE, District Judge1

Reargued January 13, 1999

Before: BECKER, Chief Judge, SLOVITER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO,

ROTH, LEWIS, MCKEE, RENDELL and ROSENN,

Circuit Judges

(Opinion filed: March 30, 1999)

_________________________________________________________________

1. The Honorable Dickinson R. Debevoise, Senior United States District

Judge for the District of New Jersey, sitting by designation.

Kerry Fraas

County Solicitor

Allan J. Opsitnick (Argued)

Assistant County Solicitor

Michael McAuliffe Miller

Assistant County Solicitor

Allegheny County Law Dept.

300 Ft. Pitt Commons

445 Ft. Pitt Blvd.

Pittsburgh, PA 15219

Attorneys for Appellants

Cornish F. Hitchcock, Esquire

(Argued)

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009-1001

Sarah E. Siskind, Esquire

Miner, Barnhill & Galland

44 East Mifflin Street, Suite 803

Madison, WI 53703

Jonathan B. Robison, Esquire

712 Allegheny Building

429 Forbes Avenue

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

In this en banc review, we must determine to what extent

our earlier decision in Patriot Party of Allegheny County v.

Allegheny County Dep't of Elections, 95 F.3d 253 (3d Cir.

1996) (Patriot Party I), remains good law in the wake of the

Supreme Court's decision in Timmons v. Twin Cities Area

New Party, 117 S. Ct. 1364 (1997). In Patriot Party I, we

held that the Pennsylvania statutes at issue, which in

certain local elections bar cross-nomination of candidates

by minor parties, but not by major parties, violated the

2

Patriot Party's2 right to freedom of association under the

First and Fourteenth Amendments, as well as its right to

equal protection of the laws under the Fourteenth

Amendment. We now conclude that the decision in

Timmons, in upholding a Minnesota "anti-fusion" statute

against a First Amendment attack, does not undercut our

equal protection analysis in Patriot Party I. We will,

therefore, reaffirm our holding that the Pennsylvania

statutes here, as applied to the local elections in question,

violate the Patriot Party's right to equal protection of the

laws.

I. Background

This en banc review implicates two separate but related

cases. In both cases, the Patriot Party challenged the

constitutionality of Pennsylvania's ban on minor party

"cross-nominations" in certain local offices, 25 Pa. Stat.

Ann. SS 2936(e) and 2911(e)(5), as a violation of the Patriot

Party's right to freedom of association and its right to the

equal protection of the laws. In essence, the challenged

statutes prevent minor political parties from cross-

nominating a candidate for certain local offices when that

candidate has already been nominated for the same office

by another political party. The major parties, however, are

allowed to engage in cross nomination or "fusion" for those

local offices.3 As a consequence, while Pennsylvania

prohibits all parties from cross-nominating the same person

for most state offices, it makes an exception in primary

elections for five local offices,4 in which major parties are

_________________________________________________________________

2. By Order dated January 14, 1999, this court granted plaintiff 's

motion to amend the caption to change the name of Patriot Party of

Allegheny County to Reform Party of Allegheny County. In this opinion,

we will continue to use the former appellation.

3. "Fusion" is "the nomination by more than one political party of the

same candidate for the same office in the same general election."

Timmons, 117 S. Ct. at 1367 n.1 (citing Twin Cities Area New Party v.

McKenna, 73 F.3d 196, 197-98 (8th Cir. 1996)).

4. The five offices are "judge of a court of common pleas, the

Philadelphia

Municipal Court or the Traffic Court of Philadelphia, . . . school

director

in a district where that office is elective, or . . . justice of the

peace." 25

Pa. Stat. Ann. S 2870(f).

3

permitted to cross-nominate each other's candidates, but

minor parties are prohibited from so doing.5

The undisputed facts of the first case (No. 97-3359) are

set forth in Patriot Party I, but we summarize them briefly

here. The case stemmed from the Patriot Party's attempt to

nominate Michael Eshenbaugh as a candidate for school

director in Pennsylvania's North Allegheny School District

in the November 1993 general election. This nomination

was barred by the application of the fusion ban, because

Eshenbaugh had already sought the nomination of both

major parties in the May 1993 municipal primary, in which

he had secured the nomination of the Democratic Party,

but not of the Republican Party.

_________________________________________________________________

5. The court in Patriot Party I explained the structure of the challenged

statutes:

As a minor political party, the Patriot Party does not file

"nomination petitions" for the primary elections, as do the major

political parties. Instead, the Patriot Party, like other minor

political

parties, must file "nomination papers" containing the number of

signatures specified by Pennsylvania law. 25 Pa. Stat. Ann. S 2872.

Section 2936(e) of the Pennsylvania Code prohibits the filing of a

nomination paper "if the candidate named therein has filed a

nomination petition for any public office for the ensuing primary,

or

has been nominated for any such office by nomination papers

previously filed. . . ." Furthermore, S 2911(e)(5) requires that

[t]here shall be appended to each nomination paper ... an affidavit

of each candidate nominated therein, stating-- . .. (5) that his

name has not been presented as a candidate by nomination

petitions for any public office to be voted for at the ensuing

primary election, nor has he been nominated by any other

nomination papers filed for any such office. . ..

The above sections of the election code apply only to the

"nomination papers" filed by minor parties and not to "nomination

petitions" filed by the major parties participating in the

primaries.

Thus, while S 2870(f) of the Pennsylvania election code expressly

allows the major parties to cross-nominate candidates for school

director, SS 2936(e) and 2911(e)(5) prevent such cross-nomination

by

minor political parties.

Patriot Party I, 95 F.3d at 256 n.1.

4

In February 1994, the Patriot Party filed suit for

declaratory and injunctive relief under 42 U.S.C.S 1983

against the Allegheny County Department of Elections and

its director (collectively, "the Department"), alleging that the

two relevant sections of the Pennsylvania Election Code

violate the Patriot Party's right of free association under the

First and Fourteenth Amendments, as well as its right to

equal protection of the laws under the Fourteenth

Amendment. The District Court granted summary judgment

for the Department. On appeal, a divided panel of this court

reversed the District Court's ruling on September 9, 1996,

in Patriot Party I. On November 4, 1996, we denied the

Department's petition for rehearing en banc. The

Department did not seek a writ of certiorari. On remand,

the District Court entered an order granting declaratory

and injunctive relief in favor of the Patriot Party.

Four months later, on April 28, 1997, the Supreme Court

issued its decision in Timmons. As a result, on April 30, the

Department filed a motion for relief from judgment in this

case pursuant to Fed. R. Civ. P. 60(b). The District Court

denied the requested relief. The Department appealed that

order, and another panel of this court affirmed it in an

opinion filed June 15, 1998 ("Patriot Party II"), which we will

discuss further in connection with the second case.

The undisputed facts of the second case (No. 96-3677)

also involve a nomination to the office of school director in

the North Allegheny School District. On May 13, 1995, the

Patriot Party selected several candidates for this office,

including Barbara Childress. On May 16, 1995, before the

municipal primary elections, Childress perfected her

nomination as one of the Patriot Party's candidates by filing

nomination papers with the Department.

Childress also sought the nominations of the Republican

and Democratic parties, and in the municipal primary she

won both of these nominations. On May 24, 1995, the

Department informed Childress that, since she had

previously filed nomination petitions seeking the

nominations of the major parties, she was prohibited from

seeking the nomination by a minor party.

The Patriot Party brought an action pursuant to 42

U.S.C. S 1983, seeking injunctive and declaratory relief,

5

alleging once again that the two pertinent sections of the

Pennsylvania Election Code violate the Patriot Party's right

of free association and its right to equal protection of the

laws. The Department filed a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6), while the Patriot Partyfiled a

motion for summary judgment under Fed. R. Civ. P. 56. In

October 1996 (several months before Timmons was

decided), the District Court, relying on this Court's decision

in Patriot Party I, granted the Patriot Party's motion for

summary judgment, denied the Department's motion to

dismiss, and entered an order granting the requested

injunctive and declaratory relief. On appeal, that order was

also affirmed in Patriot Party II. In Patriot Party II, the panel

recognized that Patriot Party I had held that the

Pennsylvania laws violated the equal protection rights of

the Patriot Party. The panel concluded that it was bound by

Patriot Party I insofar as the equal protection holding had

not been overruled by Timmons.

On June 30, 1998, the Department filed a petition for

rehearing en banc, asking us to decide whether Patriot

Party I (and by extension, Patriot Party II ) has been

overruled by Timmons. On July 22, 1998, we granted the

petition for rehearing en banc. For the reasons we set out

below, we conclude that Patriot Party I has not been

overruled to the extent that it held that the Patriot Party's

right to equal protection of the laws was violated by the ban

on minor party fusion in the local elections in question.

II. Patriot Party I and Timmons

To begin our discussion, it is helpful first to review the

holdings in Patriot Party I and in Timmons. In Patriot Party

I, a panel of this court held that 25 Pa. Stat. Ann.

SS 2936(e) and 2911(e)(5), which prohibit minor parties, but

not major parties, from cross-nominating candidates in

certain local elections, violate minor parties' rights to

freedom of association and equal protection of the laws.

In its freedom of association analysis, the Patriot Party I

panel applied the standard set forth in Supreme Court

precedent, including Eu v. San Francisco County Democratic

Cent. Comm., 489 U.S. 214, 222 (1989), and Anderson v.

6

Celebrezze, 460 U.S. 780, 789 (1983). The panel reiterated

the standard:

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. 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. 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. 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.

Patriot Party I, 95 F.3d at 258 (citations omitted).

The panel, applying the standard, concluded that the

Pennsylvania statutes infringed upon the Patriot Party's

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." Id. Because the panel

found these burdens to be severe, it held that Pennsylvania

"must demonstrate that these laws are narrowly tailored to

serve a compelling state interest." Id. at 264. The panel

concluded, however, that the justifications offered by the

Department did not meet this test. Id. Specifically, the

Department had argued that four important state interests

were served: "(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." Id.

The panel examined each of these interests and found that

they did not bear scrutiny. Id. at 264-68.

7

The panel also held that the challenged statutes violate

minor parties' right to equal protection of the laws. The

panel observed that the statutes facially discriminated

between major and minor parties, and that in this respect

the case was distinguishable from the Minnesota statutes

the Eighth Circuit Court of Appeals had considered in

Timmons. Id. at 268. Relying on the principles and

structure of the equal protection analysis in the Supreme

Court's decision in Williams v. Rhodes, 393 U.S. 23 (1968),

the panel examined whether the election laws created

invidious distinctions or classifications. Patriot Party I, 95

F.2d at 269 (citing Williams, 393 U.S. at 30). The panel

delineated its task as follows: "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." Id. (citing Williams, 393 U.S. at 34). Applying this

analysis, the panel concluded 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." Id. The panel noted that, by treating minor

and major parties differently, the statutes burdened both

minor parties and the voters that support them. Id. The

panel reiterated its earlier conclusion that, in the face of

these unequal burdens, the Department had offered no

compelling justifications. Id. ("Pennsylvania imposes these

unequal burdens on the right to vote and the right to

associate without protecting any significant countervailing

state interest.").

In Timmons, the Supreme Court upheld Minnesota laws

that imposed a general ban on fusion candidacies. The

Court applied the same test that the panel had applied in

Patriot Party I but concluded that the Minnesota laws did

not violate the right to freedom of association. Assessing

the burdens placed on minor political parties' associational

rights, the Court rejected the argument that a severe

burden was imposed by the fact that a party might be

prevented from nominating a particular individual as its

standard bearer. Timmons, 117 S. Ct. at 1370 ("That a

particular individual may not appear on the ballot as a

particular party's candidate does not severely burden that

8

party's association rights."). The Court then rejected an

argument that the fusion ban imposed a severe burden on

minor parties' attempts to organize or develop political

alliances. Id. at 1371 ("Minnesota has not directly

precluded minor political parties from developing and

organizing. . . . Nor has Minnesota excluded a particular

group of citizens, or a political party, from participation in

the election process."). In sum, the Court concluded the

burdens on associational rights imposed by the fusion ban

"--though not trivial--are not severe." Id. at 1372.

Having determined that the burdens were not severe, the

Court proceeded to conduct a "less exacting review," in

which "a State's `important regulatory interests' will usually

be enough to justify `reasonable, nondiscriminatory

restrictions.' " Id. at 1370 (quoting Burdick v. Takushi, 504

U.S. 428, 434 (1992) (internal quote marks omitted)). The

Court reasoned that "the State's asserted regulatory

interests need only be `sufficiently weighty to justify the

limitation' imposed on the [minor party's] rights." Id. at

1372 (quoting Norman v. Reed, 502 U.S. 279, 288-89

(1992)). Although the Court declined to consider

Minnesota's alleged interest in "avoiding voter confusion,"

id. at 1375 n.13, the Court concluded that the burdens

imposed by the Minnesota's fusion ban on minor parties'

associational rights were "justified by `correspondingly

weighty' valid state interests in ballot integrity and political

stability." Id. at 1375.

III. The Rule 60(b)(6) Motion

As a preliminary matter, we must determine if the

District Court properly denied the Department's Fed. R.

Civ. P. 60(b)(6) motion for relief from judgment filed in

Eshenbaugh's case.6 The panel in Patriot Party II affirmed

the District Court's denial of the motion. We agree.

We review a district court's denial of a Rule 60(b) motion

for abuse of discretion. Central W. Rental Co. v. Horizon

_________________________________________________________________

6. The Department moved for relief from judgment under Rule 60(b)(4)

and (6), but on appeal, they have abandoned the former, opting only for

relief under Rule 60(b)(6).

9

Leasing, 967 F.2d 832, 836 (3d Cir. 1992). An abuse of

discretion may be found when "the district court's decision

rests upon a clearly erroneous finding of fact, an errant

conclusion of law or an improper application of law to fact."

International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91,

95 (3d Cir. 1987).

Relief under Rule 60(b)(6) "is available only in cases

evidencing extraordinary circumstances." Martinez-McBean

v. Government of Virgin Islands, 562 F.2d 908, 911 (3d Cir.

1977) (quoting Stradley v. Cortez, 518 F.2d 488, 493 (3d

Cir. 1975)). Furthermore, "[i]ntervening developments in the

law by themselves rarely constitute the extraordinary

circumstances required for relief under Rule 60(b)(6)."

Agostini v. Felton, 117 S. Ct. 1997, 2018 (1997). As we will

discuss below, the Supreme Court's decision in Timmons

did not overrule the holding of the Patriot Party I panel that

the Pennsylvania statutes at issue violate the Equal

Protection Clause. Therefore, as the panel in Patriot Party II

recognized, no extraordinary circumstances exist that

would justify granting the Department's motion under Rule

60(b)(6).

Furthermore, to the extent that the Department is

attempting to use its Rule 60(b)(6) motion as a means of

seeking review of our decision in Patriot Party I, a Rule

60(b)(6) motion may not be used as a substitute for an

appeal. Martinez-McBean, 562 F.2d at 911. The Department

chose not to petition for certiorari in the Eshenbaugh case

even though it was on notice that the Timmons case was

then pending before the Supreme Court. Indeed, a petition

for certiorari might have obviated the need for this en banc

review. The Department cannot attempt to second-guess

that decision now with its Rule 60(b)(6) motion.

For the above stated reasons, we find no abuse of

discretion in the District Court's denial of the Rule 60(b)

motion. The District Court properly concluded that the

outcome in Eshenbaugh's case (No. 97-3359) could not be

reopened for further consideration.

IV. The Equal Protection Claim

We turn now to the Patriot Party's motion for summary

judgment in Childress's case (No. 96-3677), the granting of

10

which was affirmed by the panel in Patriot Party II. The

granting of summary judgment by a district court is subject

to plenary review. American Med. Imaging Corp. v. St. Paul

Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir. 1991).

The primary issue before us is whether the Patriot Party's

equal protection claim is still viable after Timmons.7 Nothing

in the Timmons opinion itself weakens the equal protection

analysis of Patriot Party I, because no equal protection

claim was asserted or considered by the Court in Timmons.

The statutory scheme in Timmons differs from the

Pennsylvania scheme in a manner crucial for the equal

protection analysis. Timmons involved an across-the-board

ban on fusion by both major and minor parties. In contrast,

the Pennsylvania statutes involve a ban on cross-

nomination that facially discriminates against minor parties

by allowing major parties, but not minor parties, to cross-

nominate in certain circumstances. The Supreme Court in

Timmons did not hold that states can treat minor parties in

a discriminatory way. Indeed, in discussing the test for

deciding whether state election laws violate First and

_________________________________________________________________

7. We have chosen not to address whether the Supreme Court's opinion

in Timmons eviscerates the associational rights analysis in Patriot Party

I. In our current opinion, we hold only that 25 Pa. Stat. Ann. SS 2936(e)

and 2911(e)(5) are unconstitutional because they violate a minor party's

right to equal protection of the laws. Some degree of the associational

rights analysis in Patriot Party I may remain viable because the

Pennsylvania laws, in contrast to the Minnesota laws in Timmons,

facially discriminate between major and minor parties, thus exacerbating

the burdens imposed on minor parties. Because, however, our equal

protection analysis is directed at the impact of this same discriminatory

language, we do not go on to examine it as it applies to the right to

freedom of association.

Nevertheless, to the extent that it can be suggested that the

associational rights analysis in Patriot Party I may have state-wide or

circuit-wide implications for election processes, see Patriot Party I, 95

F.3d at 272 (Greenberg, J., dissenting) (arguing that the majority's

approach in Patriot Party I "leads to the conclusion that Pennsylvania

(and the other jurisdictions in this circuit) must permit cross-filing in

all

elections"), we note that the Timmons decision, in ruling that a generally

applicable anti-fusion law does not unconstitutionally infringe on

associational rights, appears indeed to foreclose such a suggestion.

11

Fourteenth Amendment associational rights, the Court

wrote:

Regulations imposing severe burdens on plaintiffs'

rights must be narrowly tailored and advance a

compelling state interest. Lesser burdens, however,

trigger less exacting review, and a State's " `important

regulatory interests' " will usually be enough to justify

" `reasonable, nondiscriminatory restrictions.' "

Timmons, 117 S. Ct. at 1370 (emphasis added). Thus, even

though the Court held that the burdens posed by fusion

bans on parties and voters are not severe, the Court still

maintained a requirement that the restrictions be

reasonable and nondiscriminatory. Because the

Pennsylvania law permits fusion by major parties, but

prohibits fusion by minor parties, it is, on its face,

discriminatory.8

Moreover, the Court in Timmons did not overrule in any

way its decision in Williams v. Rhodes, 393 U.S. 23 (1968),

on which the Patriot Party I panel relied in its equal

protection analysis. Rather, the Court cited Williams

favorably. See Timmons, 117 S. Ct. at 1374 (citing Williams

for the proposition that the State interest in the stability of

its political system "does not permit a State to completely

insulate the two-party system from minor parties' or

independent candidates' competition and influence").

In Williams, the Supreme Court stated at the outset:

It is true that this Court has firmly established the

principle that the Equal Protection Clause does not

make every minor difference in the application of laws

to different groups a violation of our Constitution. But

_________________________________________________________________

8. An argument could be made that the Court in Timmons did in fact give

states permission to treat minor parties differently. For example, the

Court wrote that "the States' interest permits them to enact reasonable

regulations that may, in practice, favor the traditional two party

system."

Timmons, 117 S. Ct. at 1374. This argument is disposed of, however, by

the recognition that there is a difference between regulations that "in

practice" favor a two party system and those that on their face

discriminate between major and minor parties. The Pennsylvania

statutes discriminate on their face between major and minor parties.

12

we have also held many times that `invidious'

distinctions cannot be enacted without a violation of

the Equal Protection Clause.

Williams, 393 U.S. at 30. The Court went on to define the

applicable test: "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.9

As the panel in Patriot Party I explained,"[i]n 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." Patriot Party I, 95 F.3d at 268 (citing Williams,

393 U.S. 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. (quoting Williams, 393

U.S. at 24). The panel in Patriot Party I acknowledged that

"[t]he 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."

Id. at 269. Nonetheless, the panel held 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." Id. We reaffirm this holding for

the reasons set forth below.

_________________________________________________________________

9. In Patriot Party I, after reciting the Williams test, the panel wrote

that

"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." Patriot Party I, 95 F.3d at 269. From this, the

Department tries to argue that if the free association claim is vitiated

by

Timmons, then a fortiori the equal protection claim is also vitiated. This

argument ignores, however, the fact that the equal protection analysis is

sufficiently different from the free association analysis so as to stand

on

its own.

13

The first question to be addressed in an equal protection

challenge is what level of scrutiny we should apply in

reviewing the challenged laws. In order to make this

decision, we must assess the impact of the laws on the

rights at stake. See, e.g., Illinois State Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173, 184 (1979) (holding

that "[r]estrictions on access to the ballot burden two

distinct and fundamental rights" and that "a State must

establish that its classification is necessary to serve a

compelling interest"); Bullock v. Carter, 405 U.S. 134, 142-

44 (1972) (concluding that a "Texas filing-fee scheme has a

real and appreciable impact on the exercise of the

franchise" and that the laws must therefore be " `closely

scrutinized' and found reasonably necessary to the

accomplishment of legitimate state objectives in order to

pass constitutional muster"). In Williams, for example, the

Court began its analysis by identifying the rights burdened

by the challenged state laws -- "the right of individuals to

associate for the advancement of political beliefs, and the

right of qualified voters, regardless of their political

persuasion, to cast their votes effectively." Williams, 393

U.S. at 30. The Court reasoned that the laws in question

placed "substantially unequal burdens on both the right to

vote and the right to associate." Id. at 31. The Court stated:

"In determining whether the State has power to place such

unequal burdens on minority groups where rights of this

kind are at stake, the decisions of this Court have

consistently held that `only a compelling state interest in

the regulation of a subject within the State's constitutional

power to regulate can justify limiting First Amendment

freedoms.' " Id. (citing NAACP v. Button, 371 U.S. 415, 438

(1963)).

In the instant case, therefore, we must identify the

burdens imposed by the Pennsylvania laws. In Patriot Party

I, the panel, in its equal protection analysis, identified the

following burdens: First, the ban on minor party cross-

nomination "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." Patriot Party I, 95 F.3d at 269. Second, the ban

14

burdens the political parties themselves because they "may

prohibit a minor party from nominating its best candidate

and from forming a critical type of consensual political

alliance that would help it 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." Id.

The Court in Timmons addressed similar burdens (in its

associational rights analysis) in the context of a general ban

on fusion and concluded that the burdens, although not

trivial, were not severe. Timmons, 117 S. Ct. at 1370-72.

The Court then proceeded to apply not strict scrutiny, but

an intermediate level of scrutiny, in which "the State's

asserted regulatory interests need only be `sufficiently

weighty to justify the limitation' imposed on the[minor

party's] rights." Id. at 1372 (citing Norman, 502 U.S. at 288-

89). Under this standard, the Court indicated that it would

not "require elaborate, empirical verifications of the

weightiness of the State's asserted justifications." Id. (citing

Munro v. Socialist Workers Party, 479 U.S. 189, 195-96

(1986)).

If we assume, and we believe we must, that the above

stated burdens require the same level of scrutiny in an

equal protection analysis that they do in an associational

rights analysis, then we must now apply an intermediate

level of scrutiny. In doing so, we will recognize, however,

that because of the discriminatory aspects of the

Pennsylvania statutes, the burdens imposed by them on

voters and on political parties are more onerous than those

involved in Timmons. In Timmons, the asserted burdens

existed in the context of an across-the-board ban on fusion.

Timmons, 117 S. Ct. at 1370 (noting that the Minnesota

ban, "which applies to major and minor parties alike,

simply precludes one party's candidate from appearing on

the ballot, as that party's candidate, if already nominated

by another party"). In the instant case, the burden is

exacerbated because Pennsylvania has allowed the major

parties to cross-nominate but has disallowed minor parties

from doing the same. As the panel in Patriot Party I wrote:

The ill effects of these laws are further magnified when

the major parties elect to cross-nominate the same

15

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 ballots

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.

Patriot Party I, 95 F.3d at 269.

Using an intermediate level of scrutiny, our next step is

to weigh, against the burdens imposed, any plausible

justification the State has advanced for imposing unequal

burdens on major and minor parties. Cf. Romer v. Evans,

517 U.S. 620, 632 (1996) ("[E]ven in the ordinary equal

protection case calling for the most deferential of standards,

we insist on knowing the relation between the classification

adopted and the object to be attained."). Wefind no such

justification. Although the Department has identified

justifications, such as preventing ballot manipulation and

preserving political stability, that were recognized in

Timmons to be legitimate state interests, see Timmons, 117

S.Ct. at 1373-74, the Department has not demonstrated

how these interests are served by the unequal burden

imposed here. Indeed, the Department acknowledges in its

brief that it has no idea why the Pennsylvania legislature

chose to allow major party cross-nomination in thefive

local elections at issue here, but denied the same

opportunity to minor parties. Department Br. at 17. 10

_________________________________________________________________

10. The Commonwealth of Pennsylvania has also declined to assert any

interests to justify this discrimination. We note that, in both

Eshenbaugh's and Childress's case, the District Court served the

requisite notice on the Attorney General of Pennsylvania, advising that

the cases challenged the state laws in question, thus giving the

Commonwealth an opportunity to intervene to defend them. See 28

U.S.C. S 2403(b). In addition, the Attorney General was invited by this

Court to submit an amicus brief to supplement the Department's defense

of the statutory scheme in this appeal. In each instance, including this

appeal, the Attorney General chose not to intervene or defend the

constitutionality of the challenged laws.

16

As the panel in Patriot Party I explained, "Pennsylvania

imposes these unequal burdens on the right to vote and the

right to associate without protecting any significant

countervailing state interest." Patriot Party I, 95 F.3d at

269. In the context of the equal protection claim,

Pennsylvania has not asserted any regulatory interests that

are "sufficiently weighty" to justify the discriminatory

treatment of major and minor parties.

When we consider constitutional challenges to specific

provisions of a State's election laws, we cannot speculate

about possible justifications for those provisions. The court

"must identify and evaluate the precise interests put

forward by the State as justifications for the burden

imposed by its rule." Anderson, 460 U.S. at 789; cf.

Edenfield v. Fane, 507 U.S. 761, 768 (1993) (observing that,

unlike rational basis review, the intermediate standard of

review applicable in commercial speech cases "does not

permit [the Court] to supplant the precise interests put

forward by the State with other suppositions").

Furthermore, our analysis is confined to the four state

interests asserted by the Department to the District Court.11

_________________________________________________________________

11. At oral argument, the Department asserted, for the first time, that

allowing major party cross-nomination for the five local offices served a

state interest in making those offices nonpartisan or less partisan. The

Department's failure to raise this argument in its appeal briefs, as well

as before the District Court, would alone be fatal for the argument. "An

issue is waived unless a party raises it in its opening brief, and for

those

purposes `a passing reference to an issue . . . will not suffice to bring

that issue before this court.' " Laborers' Int'l Union v. Foster Wheeler

Corp., 26 F.3d 375, 398 (3d Cir. 1994) (quoting Simmons v. City of

Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (plurality opinion)

(Becker, J.)). Even if we were to consider this state interest, however,

it

does not persuade us, because the Department fails to explain why the

interest requires or allows for discrimination against minor parties.

In addition, the Department, following the dissent in Patriot Party I,

now tries to assert a state interest in ensuring that partisan voters who

wish to vote for a "pure" Democrat or Republican know at the time of the

major party primary whether the major party candidate will accept a

minor party cross-nomination. The Department, however, in arguing this

case before the Patriot Party I panel, "never asserted that the

Commonwealth had any such interest in protecting partisan voters, even

17

"It is well established that failure to raise an issue in the

district court constitutes a waiver of the argument."

Brenner v. Local 514, United Bhd. of Carpenters, 927 F.2d

1283, 1298 (3d Cir. 1991).

As summarized in Patriot Party I, the Department

advanced four state interests to the District Court: "(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." Patriot Party I, 95 F.3d at 264. With

respect to all four purported state interests, no effort is

made by the state to show why those interests justify

permitting the major parties to cross-nominate, while

forbidding the minor parties from doing so. While such

interests may be sufficiently weighty in light of Timmons to

justify a general ban on fusion, they are not sufficiently

weighty to justify a ban that discriminates between major

and minor parties.

First, the sore loser justification is insufficient to satisfy

the applicable level of intermediate scrutiny. As the panel

explained in Patriot Party I, sore losers"are candidates who

lose a major party primary but insist on running on a

minor party ticket in the general election." Id. at 265.

Another panel of this court recently recognized that sore

loser and disaffiliation laws have been upheld. Council of

Alternative Political Parties v. Hooks, 121 F.3d 876, 881 (3d

Cir. 1997) (citing Storer v. Brown, 415 U.S. 724 (1974)).12

_________________________________________________________________

after it was suggested as a possibility at oral argument." Patriot Party

I,

95 F.3d at 264 n.6. The panel concluded that, "[b]ecause the

Department has shown no interest in pursuing this line of argument, we

will not dwell on it in this opinion." Id. Even if we were to consider the

Department's latest reversal of position, we would not find this state

interest persuasive. Once again, the Department does not explain why a

voter's alleged interest in knowing which "pure" candidates will refuse a

cross-nomination justifies discrimination against minor parties.

12. The Court in Timmons relied on Storer, in which the Court "upheld

a California statute that denied ballot positions to independent

18

The panel in Hooks, however, rejected New Jersey's attempt

to justify early filing deadlines on the grounds that they

prevented sore loser candidacies, stating that "they are

both too broad . . . and too narrow." Id. (citing Anderson,

460 U.S. at 805 & n.31). Similarly, the Pennsylvania laws

at issue here cannot be justified as preventing sore loser

candidacies because they are too broad and too narrow. As

the panel noted in Patriot Party I, the Pennsylvania laws

only "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." Patriot Party I, 95 F.3d at 165. The laws are too

broad, however, because they bar a third party from

nominating a candidate such as Ms. Childress even though

she did not lose either primary race and was thus not a

sore loser. They are too narrow because they do not prevent

candidates like Mr. Eshenbaugh from continuing on as the

Democratic candidate even though he had lost the

Republican primary.

Next, the Department asserts a state interest in

preventing voter confusion and ballot clogging caused by

_________________________________________________________________

candidates who had voted in the immediately preceding primary

elections or had a registered party affiliation at any time during the

year

before the same primary elections." Timmons, 117 S. Ct. at 1374 (citing

Storer, 415 U.S. at 728). The disaffiliation provision in Storer, however,

differs from the Pennsylvania laws in at least one crucial respect. The

Court in Timmons noted that in Storer , the challenged law "did not

discriminate against independent candidates." Timmons, 117 S. Ct. at

1374 (citing Storer, 415 U.S. at 734). Indeed, in describing the

California

statute, the Court in Storer observed that, apart from the fact that an

independent candidate needed to "qualify for the ballot by demonstrating

substantial public support" in some other way than standing for a

primary election, "the qualifications required of the independent

candidate are very similar to, or identical with, those imposed on party

candidates." Storer, 415 U.S. at 733.

Similarly, the Court in Timmons quoted from its decision in Burdick v.

Takushi, in saying that " `we have repeatedly upheld reasonable,

politically neutral regulations that have the effect of channeling

expressive activit[ies] at the polls.' " Timmons, 117 S. Ct. at 1375

(quoting Burdick, 504 U.S. at 437-38). Because the Pennsylvania laws

discriminate against minor parties, they are not politically neutral.

19

the monopolization of the ballot by minor candidates and

the proliferation of parties. The Department, however, does

not explain why minor parties can be prevented from

monopolizing the ballot and causing voter confusion when

the major parties are allowed to do so through major party

cross-nomination. In upholding Minnesota's general fusion

ban, the Court in Timmons specifically disclaimed reliance

on the state's alleged interest in avoiding voter confusion.

Timmons, 117 S. Ct. at 1375 n.13. This asserted interest

carries even less weight here. Indeed, the fact that the

Pennsylvania laws discriminate between major and minor

parties undermines this asserted interest, because major

party cross-nomination (which is allowed) would seem to

pose just as large a risk of voter confusion. Moreover, as

the panel observed in Patriot Party I, "the Department has

presented no evidence to indicate that fusion is likely to

produce a crippling proliferation of minor parties. . . .

Furthermore, Pennsylvania retains the authority to set

reasonable threshold requirements for parties seeking

admission to the ballot." Patriot Party I, 95 F.3d at 266.

The Department also asserts that allowing cross-

nomination by minor candidates will allow a candidate to

bleed off votes of independent voters to bolster his or her

major party endorsement. This state interest was not raised

in the Timmons case, and we reject it here. As the panel

pointed out in Patriot Party I, "[c]ross 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." Id. at 267. Indeed, allowing the

major parties to cross-nominate may actually serve to bleed

off minor party votes, as an individual who supports a

minor party's platform but does not want to waste a vote on

a minor candidate may cast a ballot instead on a candidate

who has been nominated by both major parties. Once

again, the fact that major parties are allowed to cross-

nominate undermines this proffered state interest.

Finally, the argument that the laws serve an interest in

encouraging new candidates to run as independents is also

undermined by the fact that major parties may cross-

nominate. "If the Commonwealth bans cross-nomination by

minor parties to encourage new candidates for office, it

20

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." Id. If anything, the current statutory scheme

may discourage independent candidates. A three-way race

against two major party candidates would be formidable

enough for an independent candidate. An independent

candidate would face an even greater challenge running

against a candidate nominated by both major parties.

In sum, we find unpersuasive each of the interests that

the Department has offered in support of Pennsylvania's

discriminatory statutory scheme. The fact that

Pennsylvania allows major parties to engage in cross-

nomination in certain local elections, but forbids minor

parties from so doing, constitutes "invidious discrimination"

in violation of minor parties' right to equal protection of the

laws. The facially discriminatory nature of the laws imposes

a heavier burden on minor parties than a general fusion

ban of the type considered in Timmons. Moreover, unlike

the Timmons case, the Department in this case has offered

no "important" or "sufficiently weighty" state interests that

justify, even under intermediate scrutiny, the

discriminatory burdens imposed on minor parties.

V. Conclusion

We reaffirm the holding of the Patriot Party I panel that

25 Pa. Stat. Ann. SS 2936(e) and 2911(e)(5) violate the

Patriot Party's right to equal protection of the laws by

banning cross-nomination of candidates by minor parties in

certain local elections. Therefore, we will affirm the orders

of the District Court denying Rule 60(b) relief in

Eshenbaugh's case (No. 97-3359) and granting summary

judgment for the Patriot Party in Childress's case (No. 96-

3677). The injunction of the District Court, as it appears in

Paragraph 4 of the District Court's Order of December 9,

1996, is affirmed as written. However, because we affirm

only on equal protection grounds, we will remand the

Childress case with instructions that the District Court

delete from Paragraph 3 of that Order the phrase"to free

21

association under the First and Fourteenth Amendments of

the Constitution, and".13

_________________________________________________________________

13. Paragraphs 3 and 4 of the District Court Order of December 9, 1996

state:

3. Article IX, Sections 951(e)(5) and 976(e) of the Act of June 3, 1937,

P.L. 1933, Pennsylvania Election Code, (the code) 25 P.S. SS2911(e)(5)

and 2936(e) (Sections 2911(e)(5) and 2936(e)) are declared to be an

unconstitutional burden on the right of plaintiff, the Patriot Party of

Allegheny County, to free association under the First and Fourteenth

Amendments of the Constitution, and to equal protection of the law

under the Fourteenth Amendment to the Constitution insofar as they

prohibit plaintiff, a minor political party, from nominating any person as

a Patriot Party candidate for any office referred to in Section 2870(f) of

the Code, 25 P.S. S2870(f), because such person is also a major party

candidate for that office.

4. Defendants are hereby enjoined from enforcing the provisions of

Sections 2911(e)(5) and 2963(e) of the Code to prevent a minor political

party from nominating a candidate for any office referred to in Section

2870(f) of the Code because that candidate files a petition for a major

party nomination to that office or is nominated as a candidate for that

office in the primary election of a major party.

22

McKEE, Circuit Judge, concurring:

I concur fully with the majority's holding that the

Supreme Court's decision in Timmons v. Twin Cities Area

New Party does not affect this Court's review of

Pennsylvania's discriminatory anti-fusion laws under the

Equal Protection Clause. I further concur in the majority's

conclusion that the anti-fusion laws at issue here violate

the Equal Protection Clause. I believe, however, that, under

the Equal Protection Clause, when a law both discriminates

and burdens a fundamental right, strict scrutiny, rather

than intermediate scrutiny, applies. See Clark v. Jeter, 486

U.S. 456, 461 (1988) ("Classifications based on race or

national origin and classifications affecting fundamental

rights are given the most exacting scrutiny.") (internal

quotations omitted); Nordlinger v. Hahn, 505 U.S. 1, 10

(1992) (discriminatory statutes that interfere with a

fundamental right are subject to strict judicial scrutiny);

Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58

(1988) (same).

The classification here must be narrowly tailored to serve

a compelling State interest to survive an Equal Protection

challenge. Indeed, the Supreme Court repeatedly has

applied precisely this standard to review ballot restrictions

which disparately infringe upon First Amendment

associational rights. See, e.g., William v. Rhodes, 393 U.S.

23, 31 (1968) (In reviewing a ballot restriction applicable

only to minor parties, the Court stated: "In determining

whether the State has power to place such unequal

burdens on a minority group where [associational rights]

are at stake, the decisions of this Court have consistently

held that `only a compelling state interest in the regulation

of a subject within the State's constitutional power to

regulate can justify limiting First Amendment freedoms.' ")

(quoting NAACP v. Button, 371 U.S. 415 (1963)); American

Party of Texas v. White, 415 U.S. 767, 780 (1974) ("We

agree with the District Court that whether the qualifications

for ballot position are viewed as substantial burdens on the

right to associate or as discriminations against parties not

polling 2% of the last election vote, their validity depends

upon whether they are necessary to further compelling

state interests," which cannot be served "equally well in

23

significantly less burdensome ways."); Storer v. Brown, 415

U.S. 724, 729 (1974) (applying Williams v. Rhodes strict

scrutiny to review ballot restrictions on independent

candidates); Illinois State Bd. of Elec. v. Socialist Workers,

440 U.S. 173, 184-86 (1979) (applying strict scrutiny

standard to review disparate nominating requirements); see

also, e.g., Harper v. Virginia State Bd. of Elec., 383 U.S.

663, 670 (1966) ("close scrutiny" applied to poll tax, which

discriminates on the basis of wealth, because fundamental

right infringed); Bullock v. Carter, 405 U.S. 134, 142-44

(1972) (applying Harper standard to filing fee system).

As the Supreme Court recognized in Timmons, anti-fusion

laws, like the ones at issue here, burden First and

Fourteenth Amendment associational rights. Timmons, 520

U.S. 351, 357-58 (1997); see also Munro v. Socialist

Workers Party, 479 U.S. 189, 193 (1986) (recognizing that

balloting and eligibility requirements for minority party

candidates impinge fundamental associational rights);

Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983)

(same); Williams, 393 U.S. at 30-31 (same). In determining

whether the burdens actually violated the First

Amendment, the Court stated:

Regulations imposing severe burdens on plaintiffs'

rights must be narrowly tailored and advance a

compelling state interest. Lesser burdens, however,

trigger less exacting review, and a State's `important

regulatory interests' will usually be enough to justify

`reasonable, nondiscriminatory restrictions.'

Timmons, 520 U.S. at 358 (emphasis added). Thus, the

Court's decision in Timmons to apply a less exacting

standard of review was premised on the fact that the

Minnesota anti-fusion laws were nondiscriminatory. That is

not our case: Pennsylvania's anti-fusion laws discriminate

between major parties and minor parties. Therefore, even

assuming that the standard used in Timmons applies in the

First Amendment context, I doubt its application in the

Equal Protection context.

Thus, because the Pennsylvania anti-fusion laws are both

discriminatory and burden a fundamental right, I believe

that under established Equal Protection doctrine we must

24

strictly scrutinize Pennsylvania's discriminatory treatment

of minority party candidates under the anti-fusion laws.

Because I agree with the majority's conclusion that the

ballot restrictions do not pass constitutional muster even

under the less exacting scrutiny applied by the majority, it

necessarily follows that they do not pass muster under the

heightened scrutiny standard that I advocate. Accordingly,

I concur in the majority's result.

25

GREENBERG, Circuit Judge, concurring and dissenting:

I concur and join in the court's opinion denying the

Department's motion under Fed. R. Civ. P. 60(b)(6). I add

the following comments, however, with regard to that

motion. By the time of our decision in Patriot Party I on

September 9, 1996, the Supreme Court had granted

certiorari in Twin Cities Area New Party v. McKenna,, 73

F.3d 196 (8th Cir. 1996). See McKenna v. Twin Cities Area

New Party, 517 U.S. 1219, 116 S.Ct. 1846 (1996). Thus,

the Department had every reason to believe that the

Supreme Court would review at least a portion of the theory

underlying our opinion in Patriot Party I. Moreover, I

dissented in Patriot Party I. See Patriot Party v. Allegheny

County Dep't of Elections, 95 F.3d 253, 270 (3d Cir. 1996).

Nevertheless, in the face of these encouraging signs, the

Department chose not to seek certiorari in Patriot Party I.

Therefore, it would be difficult to justify granting the Rule

60(b)(6) motion. Moreover, even though this case has

ramifications going beyond the interests of the parties, in

view of the court's decision in No. 96-3677, Childress's

case, with respect to the equal protection claim, the

Department cannot obtain effective relief on the merits in

No. 97-3359.

While I join in the result in No. 96-3677, with respect to

Childress, the opinion plainly goes too far and thus I must

dissent from it. In dissenting in Patriot Party I, I made the

following point:

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

26

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, 471 Pa. 471,

370 A.2d 702, 705-07 (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.

Patriot Party I, 95 F.3d at 271.

The circumstances I contemplated in Patriot Party I that

might arise in fact came to pass in Childress's case

because, as the majority points out, Childress "perfected

her nomination as one of the Patriot Party's candidates by

filing nomination papers with the Department" on May 16,

1995, "before the municipal primary elections." Majority

Op. at 5. Accordingly, the question for the court to resolve

in No. 96-3677 should not be whether 25 Pa. Stat. Ann.

SS 2936(e) and 2911(e)(5) are unconstitutional as violating a

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

the question should be whether the statutes are

unconstitutional as violating a minor party's right to equal

protection of the law when its candidate declares her intent

to cross-file before a primary election. Indeed, the Patriot

Party itself well understands this point because in its brief

in No. 96-3677 it explains that "[t]he present case (Patriot

II) was also filed as an `as applied' challenge after the

County refused to permit the Party [to] nominate another

candidate (Barbara Childress) in the 1995 municipal

election cycle." Br. at 5 (emphasis added).

I will accept the result that the statutes in issue are

unconstitutional when applied to a minor party candidate,

such as Childress, cross-filing before the primaries,

because a candidate by cross-filing before the primary

election may seek both major parties' nominations. But

sections 2936(e) and 2911(e)(5) surely are not

unconstitutional if applied in circumstances paralleling

those in Eshenbaugh's case in Patriot Party I, because there

the candidate was seeking to cross-file at a time when the

major parties had selected their candidates at the primaries

27

and thus could no longer nominate cross-filing candidates.

It therefore follows that applying sections 2936(e) and

2911(e)(5) only when a candidate seeks to cross-file after a

primary treats a minor party exactly the same as the major

parties. Consequently, there simply cannot be an equal

protection problem in those circumstances, as the statutes

do not place unequal burdens on minor and major parties.

Thus, the Department need not demonstrate any interest to

justify discriminatory treatment of major and minor parties,

as there is no discriminatory treatment to justify.

Accordingly, in declaring sections 2936(e) and 2911(e)(5)

unconstitutional without regard for when the candidate

cross-files, the majority goes too far.

I close by making one more point. A court sometimes

must declare a state statute unconstitutional. Nevertheless

should we not, as a federal court, be restrained in taking

such action? The Supreme Court of Pennsylvania in

Commonwealth v. The First School, 370 A.2d 702, 705-07

(Pa. 1977), made it clear that if a statute can be applied

constitutionally in some situations then a court should so

apply it. After all, 1 Pa. Cons. Stat. Ann. S 1925 (1995)

(emphasis added) provides:

The provisions of every statute shall be severable. If

any provision of any statute or the application thereof to

any person or circumstance is held invalid, the

remainder of the statute, and the application of such

provision to other persons or circumstances, shall not be

affected thereby, unless the court finds that the valid

provisions of the statute are so essentially and

inseparably connected with, and so depend upon, the

void provision or application, that it cannot be

presumed the General Assembly would have enacted

the remaining valid provisions without the void one; or

unless the court finds that the remaining valid

provisions, standing alone, are incomplete and are

incapable of being executed in accordance with the

legislative intent.

We should follow First School and apply section 1925 here

because it is clear that the statutes easily can be applied

constitutionally to a minor party's cross-filing after the

primary. Moreover, can anyone really believe that the

28

Legislature would not want sections 2936(e) and 2911(e)(5)

applied to minor party candidates filing after the primary

merely because they cannot be applied to those filing

earlier? Surely, the Legislature would want the statutes

applied so far as is possible.

The majority indicates that "[b]ecause the Pennsylvania

law permits fusion by major parties, but prohibits fusion by

minor parties, it is, on its face, discriminatory." Maj. Op. at

12. A proper respect for judicial restraint should lead us to

the result that the discrimination be eliminated by allowing

the minor parties to fuse their candidates with the major

parties' candidates when the major parties' candidates can

fuse with each other. Instead, the majority creates a new

type of discrimination, as it allows a minor party to fuse its

candidates with those of a major party when the major

parties' candidates cannot fuse. Thus, I dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29