Consumer Party v. Davis
| Decision Date | 09 April 1985 |
| Docket Number | Civ. A. No. 85-0836. |
| Citation | 606 F. Supp. 1008 |
| Parties | CONSUMER PARTY, Max Weiner, Lance Haver, William Thorn, and Lisa Brennan v. William R. DAVIS, Secretary of the Commonwealth of Pennsylvania; Richard Anderson, Bureau of Legislation, Commissions and Elections; Margaret Tartaglione, Marion Tasko and John Kane, Commissioners of the City of Philadelphia. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
David Kairys, Stefan Presser, Philadelphia, Pa., for plaintiffs.
Carl Vaccaro, Philadelphia, Pa., for defendants.
Plaintiffs, the Consumer Party and several of its officers, candidates and members, sought preliminary and permanent injunctive and declaratory relief prohibiting the enforcement of Act 190 of 1984, 25 Pa.C.S.A. § 912.1, against the Consumer Party. There is jurisdiction over this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(1), (3), (4) and 2201.1 Plaintiffs contended that the challenged state legislation, substantially increasing the number of signatures required to nominate candidates in the primary election, unconstitutionally deprives the Consumer Party of the right to participate in elections. Defendants City and Commonwealth responded that the Consumer Party has or will have a sufficient number of registered party members to place candidates for primary nomination in the Consumer Party name or to write them in on the primary ballot; if the number of registered party members is insufficient for these purposes, defendants stated that Consumer Party members and supporters could write-in their preferred candidates on the general election ballot.
The court heard testimony and issued an Order denying plaintiffs' motion on March 12, 1985. This Memorandum constitutes the findings of fact and conclusions of law in support of that Order.
We begin by considering the nature and extent of Pennsylvania's statutory scheme. The Pennsylvania Election Code, 25 Pa.C. S.A. § 2600 et seq., establishes a two-tiered system of political associations for electoral purposes: political parties and political bodies. A state-wide political party is defined as an organization polling in the state as a whole, and in each of at least ten counties, not less than two percent of the largest entire vote cast for any state-wide candidate elected in the preceding general election, 25 Pa.C.S.A. § 2831(a); a political body is any other political association which nominates candidates for general elections, 25 Pa.C.S.A. § 2831(c). Any party or body, one of whose candidates polled at least five percent of the largest entire vote cast for any county candidate elected at either the general or municipal election preceding the primary, is a political party within that county, 25 Pa.C.S.A. § 2831(b).
Political parties must nominate all their candidates for office at primary elections, 25 Pa.C.S.A. § 2862, at which only those registered as members of a political party may vote, 25 Pa.C.S.A. § 2832.2 The candidates who win a party primary are that party's nominees for office at the next general election. In order to qualify for a place on a party's primary ballot, a candidate must file a nomination petition signed by a requisite number of registered members of that party, 25 Pa.C.S.A. § 2868.3 Although one signing a primary nominating petition must be a registered party member, a candidate need not be a party member unless he or she is seeking party office or selection as a party delegate to a nominating convention, 25 Pa.C.S.A. § 2868.
Title 25 Pa.C.S.A. § 2872, the predecessor to Act 190 of 1984, required, inter alia, primary nominating petitions to be signed by the following number of registered party voters:
President and United — 100 in each of at least
States Senate ten counties
State-wide Office — 100 in each of five
counties
Representative in Congress — 200
and State Senator
State Legislature — 100
City-Wide Office (first-class — 100
cities)
Act 190 of 1984 substantially increases the required number of valid registered party members' signatures on nominating petitions:
President and United — 2,000
States Senators
Governor — 2,000, including at least
100 from each of ten
counties
Other State-Wide Offices — 1,000, including at least
100 from each of five
counties
Representative in Congress — 1,000
State Senator — 500
State Legislature — 300
City-Wide Offices — 1,000
(first-class cities)
These signatures must be gathered during a three-week period beginning the thirteenth Tuesday before the primary and ending the tenth Tuesday before the primary (since this year's primary will be held on May 21, 1985, this period was from February 19—March 12, 1985), 25 Pa.C. S.A. § 2868.
Primary nominees may also be selected by write-in votes. But write-in votes may not be certified for a candidate unless the total number of votes for that person is equal to or greater than the number of signatures required on a nomination petition for the particular office in question, 25 Pa.C.S.A. § 3155.
Political bodies may not use the primary election machinery for nomination of their candidates. Instead, a political body candidate is nominated directly for the general election ballot by submitting to the Secretary of the Commonwealth nomination papers containing a requisite number of signatures of qualified electors (regardless of party affiliation) in the electoral district where that individual is running for office, 25 Pa.C.S.A. § 2911(a). For state-wide offices, the number of signatures required is at least two percent of the largest entire vote cast for any elected state-wide candidate in the last preceding election, 25 Pa.C. S.A. § 2911(b). For non-state-wide offices, the number of signatures required is at least two percent of the largest entire vote cast in that electoral district for any officer, except a judge of a court of record, in the last preceding election, 25 Pa.C.S.A. § 2911(b). These signatures must be obtained during a period between the tenth Wednesday prior to the primary and the second Friday subsequent to the primary (March 20—May 31, 1985), 25 Pa.C.S.A. § 2913(b).
A political body candidate may, but need not be, a member of the political body nominating the candidate; a candidate may also be unaffiliated or independent. Multiple candidates for the same office representing the same political body are prohibited. The Secretary of the Commonwealth or any county board of elections is required to reject nomination papers if:
the appellation set forth therein is identical with or deceptively similar to the words used by any existing party or by any political body which has already filed nomination papers for the same office, or if the appellation set forth therein contains part of the name, or an abbreviation of the name or part of the name of an existing political party, or of a political body which has already filed nomination papers for the same office.
However, a political body candidate cannot be a registered member of any party during the time beginning thirty (30) days before the primary and extending to the general or municipal election, 25 Pa.C.S.A. § 2911.1. Therefore, a candidate seeking nomination by a political body must file an affidavit stating that "he was not a registered and enrolled member of a party thirty (30) days before the primary held prior to the general or municipal election in that same year." 25 Pa.C.S.A. § 2911(e)(6). This "sore loser" provision has been described as a "laudable effort" to prevent disappointed candidates from bolting their party on the eve of or after losing a primary election and forming new political entities for the purpose of securing ballot access. In re Owens, 62 Pa.Cmwlth. 281, 436 A.2d 260, 262 (1981).
Political parties and political bodies also have different methods of nominating candidates for special elections. Political parties may nominate their candidates as provided by party rules; no nominating petition signatures are required, 25 Pa.C.S.A. § 2776 et seq. However, political bodies may nominate such candidates only by filing signed nomination papers. Id. Both parties and bodies are permitted to make substitute nominations in case of death or withdrawal of any candidate nominated for general or special election, 25 Pa.C.S.A. §§ 2784, 2939, 2940.4
The Pennsylvania Consumer Party is an outgrowth of a consumer organization founded by Max Weiner and others in Philadelphia in 1965. This organization sought to redress consumer grievances that were inadequately addressed by any existing governmental agency. In 1967, organization members, believing their goal of reducing consumer abuse in the marketplace would be promoted most effectively through political action, formed the Consumer Party.
For some time thereafter, the Consumer Party was a political body and nominated candidates for general election by securing the requisite number of signatures on nominating papers as required by the Pennsylvania election laws. While the Consumer Party's candidates were unsuccessful in winning office, the Consumer Party provided a vehicle for political debate and promoted women and minority candidates.
The Consumer Party achieved (and has retained)5 party status in Philadelphia County in 1976, in Allegheny, Beaver and Centre Counties in 1980, and state-wide in 1982; it has since been included on the primary ballot as a party.
In 1977 the Consumer Party lacked sufficient registered members to obtain the necessary number of signatures under § 2872 (the predecessor to Act 190) to place candidates on the primary ballot. But the Consumer Party increased its membership...
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