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

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 dis *319 criminates and burdens a fundamental right, strict scrutiny, rather than intermediate scrutiny, applies. See Clark v. Jeter, 486 U.S. 456, 461 , 108 S.Ct. 1910 , 100 L.Ed.2d 465 (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 , 112 S.Ct. 2326 , 120 L.Ed.2d 1 (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 , 108 S.Ct. 2481 , 101 L.Ed.2d 399 (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., Williams v. Rhodes, 393 U.S. 23, 31 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (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 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963)); American Party of Texas v. White, 415 U.S. 767, 780 , 94 S.Ct. 1296 , 39 L.Ed.2d 744 (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 discrimina-tions 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 significantly less burdensome ways!”); Storer v. Brown, 415 U.S. 724, 729 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (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 , 99 S.Ct. 983 , 59 L.Ed.2d 230 (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 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (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 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (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 , 117 S.Ct. 1364 , 137 L.Ed.2d 589 (1997); see also Munro v. Socialist Workers Party, 479 U.S. 189, 193 , 107 S.Ct. 533 , 93 L.Ed.2d 499 (1986) (recognizing that balloting and eligibility requirements for minority party candidates impinge fundamental associational rights); Anderson v. Celebrezze, 460 U.S. 780, 786-87 , 103 S.Ct. 1564 , 75 L.Ed.2d 547 (1983) (same); Williams, 393 U.S. at 30-31 , 89 S.Ct. 5 (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 , 117 S.Ct. 1364 (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 *320 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 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.