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

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 , 134 L.Ed.2d 947 (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 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 pa *321 pers with the Department” on May 16, 1995, “before the municipal primary elections.” Majority Op. at 309. Accordingly, the question for the court to resolve in No. 96-3677 should not be whether 25 Pa. Stat. Ann. §§ 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 Chil-dress, 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 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, 471 Pa. 471 , 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. § 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 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]eeause the Pennsylvania law permits fusion by major parties, but prohibits fusion by mi *322 nor parties, it is, on its face, discriminatory.” Maj. Op. at 313. 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.