Consumer Party v. Davis, 85-1219
| Decision Date | 27 November 1985 |
| Docket Number | No. 85-1219,85-1219 |
| Citation | 778 F.2d 140 |
| Parties | CONSUMER PARTY, Max Weiner, Lance Haver, William Thorn, and Lisa Brannan, Appellants, v. William R. DAVIS, Secretary of the Commonwealth of Pennsylvania, Richard Anderson, Bureau of Legislation, Commissions and Elections, Margaret Tartaglione, Marian Tasco, and John Kane, Commissioners of the City of Philadelphia, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
David Kairys (argued), Kairys & Rudovsky, Stefan Presser, American Civil Liberties Union, Philadelphia, Pa., for appellants.
Leroy S. Zimmerman, Atty. Gen., Carl Vaccaro (argued), Deputy Atty. Gen., Andrew S. Gordon, Sr. Deputy Atty. Gen., Allen C. Warshaw, Chief Deputy Atty. Gen., Ralph J. Teti, Divisional Deputy City Sol., Pamela Foa, Deputy City Sol., Philadelphia, Pa., for appellees.
Before GARTH, BECKER, and VAN DUSEN, Circuit Judges.
Legislators, sharing the human qualities of their constituents, do not always foresee when legislation designed to solve a particular problem may create an equally serious problem. Such was the case when the Pennsylvania General Assembly, in an effort to solve the "ballot clutter" problem on Democratic Party primary election ballots in Philadelphia, 1 amended the Pennsylvania Election Code to increase markedly the number of signatures necessary to secure a place on the primary ballot of a political party. 25 P.S. Sec. 2872.1 (). In passing Act 190, the legislature unwittingly but effectively barred political parties with few registered members from nominating candidates for the primary election. Moreover, because primary nomination is the only route available for members of political parties to attain general election ballot access, 25 P.S. Sec. 2862, small parties, unable to nominate candidates for the general election ballot, are deprived of meaningful participation in the political process.
This action was brought in the district court for the Eastern District of Pennsylvania by the Consumer Party and its members (appellants). 2 The complaint alleges that Act 190 deprives appellants of a primary election and that, in conjunction with other provisions of the Election Code, deprives them of general election ballot access, all in violation of appellants' first amendment rights. After hearing the matter on an emergency basis, and acknowledging the merits of appellants' claims, the district court elected to afford relief without declaring the Pennsylvania statutory scheme unconstitutional. The court thus denied the preliminary injunctive relief sought by plaintiffs, 3 but through an intricate interpretation of the statutory scheme, provided that the Consumer Party could attain access to the general election ballot by nominating as a political body, while otherwise retaining its status as a political party. Even though the district court thus granted them affirmative relief, appellants vigorously object to the chosen remedy, hence this appeal.
For the reasons that follow we shall vacate the district court's order and remand the case for further and expedited proceedings consistent with this opinion.
The Pennsylvania Election Code divides political entities that sponsor candidates for public office into two categories: political parties and political bodies. 25 P.S. Sec. 2831. Party status is attained by achieving a certain degree of success in the previous election in accordance with a complex numerical formula. 25 P.S. Sec. 2831(a), (b). All political groups that are not political parties are political bodies.
There are several advantages to party status. For example, parties, but not bodies, are listed on all voter registration forms. Parties can designate candidates by certification in special elections, whereas bodies must use the cumbersome signature-gathering process to nominate candidates for such elections. Parties also enjoy much more prestige in the eyes of the media and public. The most significant difference between parties and bodies, however, is the method by which they nominate candidates for the general election. Parties are required to nominate by primary election. 25 P.S. Sec. 2862. Party members aspiring to get on the primary election ballot must submit nominating petitions signed within a limited time frame by a statutorily mandated number of registered members of their party. 25 P.S. Secs. 2872.1, 2873. Political bodies, by contrast, are not permitted to nominate by primary. Rather, they are required to nominate by petition; nominees then go directly on the general election ballot. 25 P.S. Secs. 2911, 2936. These nominating petitions may be signed by registered voters of any party. The number of required signatures is determined by different formulae and varies according to the number of votes cast in previous elections.
Before Act 190 was passed, the signature requirements for primary ballot access were minimal. 4 Although, as noted, the number of signatures required for political body nomination varies from election to election, prior to the passage of Act 190 the signature requirements for political bodies were invariably far more onerous than the signature requirements for political party primary ballot access. For example, to qualify any candidate for statewide office in 1984, a political body had to collect 49,000 signatures, while a political party needed only 500 signatures of its registered members to nominate candidates for the primary (with the primary winner automatically getting on the general election ballot).
Act 190 substantially increased the number of signatures required for primary election ballot access for political parties. 5 The new signature requirements imposed by Act 190 make it difficult or impossible for the Consumer Party to place candidates on the primary ballot 6. Consumer Party candidates for the office of Philadelphia City Controller, for example, who previously had to acquire 100 signatures to get on the primary ballot, must now acquire 1,000. Because there are roughly 1400 Consumer Party members in Philadelphia, to get on the primary ballot a Consumer Party City Controller candidate must acquire the signatures of almost 70% of the party members, an undertaking conceded by all the parties to be virtually impossible. 7
For many years, the Consumer Party nominated as a political body, obtaining the requisite numbers of signatures on nominating petitions. In 1982, the party finally achieved enough electoral success to become a statewide political party, thus enabling it to devote less time to acquiring signatures and more time to campaigning and other party activities. Shortly thereafter, the Pennsylvania legislature passed Act 190. Under Act 190, for election to some offices the number of required signatures for primary ballot access exceeds the number of Consumer Party members; hence the Consumer Party is automatically prevented from having a candidate on the primary ballot. 8 Even where the required number of signatures does not exceed the number of Consumer Party members, it may represent such a large portion of Consumer Party members that it will be virtually impossible for the party to place a candidate on the primary ballot. See supra at 143. Where the Consumer Party has no candidates on the primary ballot, it can nominate no candidates for the general election ballot.
Moreover, even where the Consumer Party can field a primary candidate, it will be unable to have more than one. Because the number of signatures required by Act 190 will be a very high percentage of the number of Consumer Party members in virtually every election, and because individuals may sign but one petition for each office, 25 P.S. Sec. 2868, the Consumer Party could have, at most, one candidate on its primary ballot. Thus Act 190 deprives Consumer Party members of a contested primary.
On February 15, 1985, appellants filed a complaint and a motion for a preliminary injunction striking down Act 190 as unconstitutional either facially or as applied to them. The complaint alleged that Act 190 unconstitutionally deprived them of a primary and also that, in conjunction with the statutory requirement that parties must nominate for the general election by primary, the Act deprives them of general election ballot access. Defendants answered on February 25, denying any unconstitutionality, and on March 1, the district court held a hearing. 9 On March 12, the district court entered an order upholding the constitutionality of Act 190, but retaining jurisdiction to ensure that members of the Consumer Party would have access to the general election ballot through the political body nominating procedure. 10 On March 26, the district court filed a memorandum of decision, 606 F.Supp. 1008 (E.D.Pa.1985), noting its jurisdiction pursuant to 28 U.S.C. Secs. 1331, 1343(1), (3), (4), and explaining the grounds for its order. Because the district court's order is terse, it can be understood only in conjunction with the court's opinion.
The district court's opinion first canvassed the Pennsylvania statutory scheme and the voting rights case law, and then applied the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) to each of the Consumer Party's claims. This test requires the court to consider the character and magnitude of the asserted injury, the interests advanced by the State to justify the burden imposed by its statute, and the extent to which those interests make it necessary to burden the plaintiff's rights. Id. at 789, 103 S.Ct. at 1570. The district court held that while Act 190 effectively denied Consumer Party a meaningful primary the important state interest in reducing ballot clutter was sufficient to justify...
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