motion to affirm — Tucker v. Salera

IN THE SUPREME COURT OF THE UNITED GRATES 19

i a, f

) wpruat: BOLAY fF

NO. 75-595

C. DELORES TUCKER, Secretary of the

Commonwealth of Pennsylvania and

WILLIAM SYKES,

Appellants

Vv.

BERNARD SALERA and the UNITED sTATES

LABOR PARTY and THOMAS E. WELSH, Indivi-

dually and on Behalf of a Class of

Registered Voters of Pennsylvania and

CONSUMER PARTY and MAX WEINER, Indivi-

dually and on Behalf of a Class of

Registered Voters of Pennsylvania,

Appellees

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

MOTION OF APPELLEES MAX WEINER

AND CONSUMER PARTY TO AFFIRM

GREGORY M. HARVEY

123 South Broad St.

Phila., Pa. 19109

(215) 491-9427

Attorney for Appellees

Max Weiner and

Consumer Party

Index

Page

goo. ff 9. rer 1

DURE SDECERE ccccceceeeeseese 2

QUESTIONS PRESENTED ........ 2

STATUTE INVOLVED ...cccccccs 3

es, ee 4

GHC EAEEE coeeceeseeseeeeese 17

CITATIONS

CASES:

American Party of Texas

v. White, 415 U.S. 767 ... 8

Consumer Party v. Tucker,

364 F. Supp. 594 (E.D.

Pa. 1973) cccccccccccosess 6

Marbury v. Madison, l

Cranch 137 cccccccccccccecs 16

People's Party v.

Tucker, 347 F. Supp. l

(M.D. Pa. 1972) cccccccces 5

Storer v. Brown, 415

Fe: eerrrrre: TT eee 8

Williams v. Tucker, 382

F. Supp. 381 (M.D. Pa.

lo aes 15

STATUTES :

Pennsylvania Election Code

of 1937, 25 Purdon's Pa.

Stat. Ann:

§ 2913(b)

§ 2913(c)

e

Pag

ii

IN THE SUPREME COURT OF THE UNITED STATES

NO. 75-595

C. DELORES TUCKER, Secretary of the

Commonwealth of Pennsylvania and

WILLIAM SYKES,

Appellants

Vv.

BERNARD SALERA and the UNITED STATES

LABOR PARTY and THOMAS E. WELSH, Indivi-

dually and on Behalf of a Class of

Registered Voters of Pennsylvania and

CONSUMER PARTY and MAX WEINER, Indivi-

dually and on Behalf of a Class of

Registered Voters of Pennsylvania,

Appellees

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

MOTION OF APPELLEES MAX WEINER

AND CONSUMER PARTY TO AFFIRM

OPINION BELOW

The opinion below is reported

at 399 F. Supp. 1258 (Appendix ("App.")

to the Jurisdictional Statement 9) and

the Amended Order dated August 6, 1975,

is reported at 399 F. Supp. 1269 (App. 29).

JURISDICTION

This is a direct appeal pursuant

to 28 U.S.C. § 1253 from an order entered

August 6, 1975, by a three-judge district

court convened pursuant to 28 U.S.C.

§ 2284. The notice of appeal was filed

August 15, 1975.

QUESTIONS PRESENTED

1. Where the Constitutionality

of state restrictions on ballot position

for independent political candidates is

challenged by plaintiffs certified to

represent separate classes of independent

voters, independent candidates, and

political bodies desiring to support

such candidates, does the validity of

such state restrictions depend upon

whether they are necessary to further

compelling state interests?

2. Where no substantial state

interest, much less a compelling state

interest, can be discerned to sustain the

restrictive time limitation the enforce-

ment of which was enjoined by the

district court, should the decision

below be affirmed?

STATUTE INVOLVED

The court below enjoined enforce-

ment of the time limitation on filing of

nomination papers to obtain ballot

position for independent candidacies,

Pennsylvania Election Code of 1937, as

amended August 13, 1963, P.L. 707, § 12,

25 Purdon's Pa. Stat. Ann. § 2913(b) and

(c), as follows:

"(b) No nomination paper

shall be circulated prior

to the tenth Wednesday

prior to the primary, and

no signature shall be

counted unless it bears a

date affixed not earlier

than the tenth Wednesday

prior to the primary nor

later than the seventh

Wednesday prior to the

primary."

4.

"(c) All nomination papers

must be filed on or before

the seventh Wednesday prior

to the primary."

STATEMENT

This appeal is from the most

recent of four decisions concerning the

Constitutionality of Pennsylvania's

restrictions on the time period within

which to circulate and file nomination

papers to obtain ballot positions for

independent candidacies. Although an

independent political group (referred

to in the Pennsylvania Election Code

as a “political body," in contrast to

an established "political party," 25

Purdon's Pa. Stat. Ann. § 2831) is not

allowed to participate in the primary

election held on the third Tuesday of

May in ordinary years and held on the

fourth Tuesday of April in Presidential

election years, 25 Purdon's Pa. Stat.

Ann. §§ 2753 and 2754, the time

limitation for the filing of such

nomination papers is the seventh Wednes-

day prior to the primary, as set forth

in Section 2913(c), quoted above.

The statutory limitation restricts

the circulation and filing of nomination

papers in nonpresidential years to a

three-week period which ends 218 days

before the November general election.

and which ends 244 days before the

November election in presidential years.

In People's Party v. Tucker, 347

F. Supp. 1 (M.D. Pa. 1972), a three-

judge court held, one judge dissenting,

that the three-week period was "so short

and so remote from the election as to

be unreasonable. We have been unable to

ascertain any valid purpose to be served

by it." 347 F. Supp. at 4. The court's

order enjoined enforcement of the time

limitations and required the acceptance

of nomination papers circulated and

6.

filed on or before August 14, 1972. In

Consumer Party v. Tucker, 364 F. Supp.

594 (E.D. Pa. 1973), a single judge,

applying the rule of res judicata, held

that the decision in People's Party applied

also in the Eastern District of Pennsyl-

vania and that the August 14 date

should continue in effect “until such

time as the General Assembly of

Pennsylvania may enact a Constitutional

time limitation in lieu thereof." The

case from which the instant appeal

arises was commenced by the parties to

the Consumer Party decision following

proceedings in the Commonwealth Court

of Pennsylvania in which papers filed

within the August 14 limitation stated

in the orders entered in the People's

Party and Consumer Party decisions were’

rejected by the state court as untimely.

After several hearings and on the basis

of evidence which was not contradicted

7.

and received largely by stipulation, the

three-judge court held that the three-

week limitation was Constitutional,

but that there was no "compelling state

interest" which would “warrant the bur-

den on independent candidacies which

results fromthe early filing date." 399

F. Supp. at 1267-68, App. 22-25. The

court accordingly entered an order by

which the Secretary of the Commonwealth

and subordinate election officers were

enjoined from enforcing the time limi-

tation as to the classes of independent

voters, potential independent candidates,

and political bodies supporting such

candidacies which plaintiffs had been

certified to represent, and requiring

the acceptance of nomination papers

filed on or before August 21 in each

succeeding year, until the Pennsylvania

legislature shall act to establish a new

limitation.

ARGUMENT

The decision below is manifestly

correct and should be affirmed. The

matters presented by the Commonwealth

as occasions for the appeal are so un-

substantial as not to require further

argument.

The Constitutional validity of

restrictions placed on the procedures

by which independent political candi-

dates obtain ballot position "depends

upon whether they are necessary to

further compelling state interest

oe « @ American Party of Texas v.

White, 415 U.S. 767, 780, citing

Storer v. Brown, 415 U.S. 724, 729-33.

The instant appellees were

certified by the court below as class ;

representatives of three separate

classes of independent voters, potential

independent candidates, and political

bodies desiring to support such

candidates, 399 F. Supp. at 1262 n.4,

App. 12 n.4, and had previously been

certified as class representatives in

the People's Party and Consumer Party

decisions. The court below found on

the basis of the evidence, and without

any disagreement by the Commonwealth:

"Plaintiffs have shown

that the remoteness of the

signature gathering period

from the general election

substantially impairs the

ability of plaintiffs'

candidates to qualify as

eligible independent candi-

dates, and so threatens to

keep off the ballot candidates

for whom eligible voters wish

to cast their vote ....

399 F. Supp. at 1266, App. 22.

On this record, the court below was

correct to determine the Constitutional

validity of the Pennsylvania restric-

tions by applying to those restrictions

the standard reaffirmed in American

Party and Storer.

10.

Both in the proceedings below and

in this Court, the Commonwealth has

failed to point to any state interest,

much less a “compelling state interest,"

which would support the 218 day restric-

tion (244 days in a Presidential year

such as 1976). Neither the Jurisdic-

tional Statement nor the Commonvesith's

subsequent filings with this Court

describe any such state interest.

Notwithstanding the inability of

the Commonwealth to define a state

interest or suggest to the court below

any reason for the 218 day restriction,

the cautious opinion of the three-judge

court considered carefully--and sua

sponte--"three state interests arguably

served by the time limit", and found

each such interest to be neither com-

pelling nor substantial. 399 F. Supp.

at 267-68, App. 22-25. As to an

interest based on administrative con-

12.

ll.

process from the independent one." 399

venience, the court below found that the

F. Supp. at 1267, App. 23-24. As a third

“evidence reveals" that ballots were not

; ° possible "compelling interest,” the court

prepared “until the latter part of

below considered whether there was any

September" and that a candidate's °

benefit to voters in the primary election

name “can be added to or removed from

from their having knowledge, prior to

the ballots in late September without

the primary, of the independent candidates

more than minor inconvenience.” 399 F.

who had filed for a place on the November

Supp. at 1267, App. 22-23. On a second

election ballot. The court below

possible “compelling interest," the

assumed, for purposes of evaluating this

court below recognized that Pennsylvania

interest, that primary election voters

might validly desire to exclude defeated

would have knowledge of the nomination

primary candidates from the independent

papers on file at the Secretary of the

candidacy ballot process, aS was sus~

Commonwealth's office, notwithstanding

tained in Storer, but that there were

ee that no reference to those candidates

"less restrictive" means of effecting

would appear on the primary election

that exclusion than “scheduling the

ballot. Even on that assumption, which

signature gathering period so far in

was not sustained by any evidence in

advance of the primary," and accor- .

the record and which seems to assume

dingly that "the justification for this

' that every citizen has actual knowledge

scheduling cannot be found in the state's

of every paper on file at a Government

compelling interest in divorcing the

office if such paper is a public

party primary candidate selection

13.

record, the court below found that the

restrictive early filing date would

create “what is at best a marginal

increase in knowledgeable voting," and

that such a “state interest is in-

sufficiently compelling to warrant the

burden on independent candidacies which

results from the early filing date.”

399 F. Supp. at 1268, App. 24-25.

Neither in the court below nor

in this Court does the Commonwealth urge

that any of the three “state interests"

considered by the court below is either

"compelling" or "substantial." Nor does

the Commonwealth point to any other

interest which would justify the restric-

tion.

The issues which the Commonwealth

does raise in this Court are so unsub-

stantial as not to need further argument.

The Commonwealth's principal

occasion for this appeal appears to be

14.

based upon a claimed administrative

inconvenience created by the fact that

the United States District Court for

the Eastern District of Pennsylvania

acted within its territorial juris-

diction in preparing the Amended Order,

399 F. Supp. at 1269, App. 29-31, so

that the injunction is in force only

as to classes of independent voters,

independent candidates, and political

bodies supporting such candidates,

located within the Eastern District of

Pennsylvania. This administrative

inconvenience appears to be largely

the creation of the Commonwealth itself,

which has chosen to disregard the effect

of the Order upon the Secretary of the

Commonwealth in her state-wide capacity

and, in any event, upon affirmance (or

reversal) of the order below, such ad-

ministrative inconvenience will be

obviated because the decision of this

15.

Court will necessarily determine the

Constitutionality of the time limitation

throughout Pennsylvania.

The Commonwealth's other argument

is that another three-judge court, in

Williams v. Tucker, 382 F. Supp. 381 (M.D.

Pa. 1974), sustained the Constitutionality

of the three-week signature gathering

period under Section 2913(b). The

Williams decision is hardly in conflict

with the instant decision, because the

court below in the instant case reached

the same conclusion:

“We decline to invalidate

the 21 day signature

gathering period for

nomination papers ... -

399 F. Supp. at 1266, App.

21.

As to the time limitation for filing

nomination papers, Section 2913(c), the

Williams court neither considered nor

adjudicated the validity of that pro-

vision. In any event, the Williams

16.

Gecision was carefully considered by the

court below in the instant case and

carefully distinguished. 399 F. Supp.

at 1268, App.

"A" at 25-26. Williams

involved a "defeated party candidate,"

an incumbent

Congressman who sought

the re-nomination of the Republican

Party and, after defeat in the primary,

sought a second opportunity by filing

as an independent candidate. As the

court below stated,

App. 26:

The present case, however,

involves interests which

were not present nor con-

399 F. Supp. at 1268,

sidered in Williams. Plain-

tiffs herein are precisely

those persons whose rights

are unnecessarily infringed

by the provisions which

legitimately barred persons

such as Congressman Williams

Srem Che BOLIOG « « «© eo

The Commonwealth's third conten-

tion, that th

e court below "usurped a

legislative function and abused its

judicial powe

ment 7), does

subsequent to

Cranch 137.

rs" (Jurisdictional State-

not require argument

Marbury v. Madison, l

17.

CONCLUSION

For the reasons stated, the

judgment below should be affirmed.

Respectfully submitted,

GREGORY M. HARVEY

123 South Broad St.

Phila., Pa. 19109

(215) 491-9427

Attorney for Appellees

Max Weiner and

Consumer Party