Patriot Party of Allegheny County v. Allegheny County Dept. of Elections, 95-3385

• Citation: 95 F.3d 253
• Decision Date: 04 November 1996
• Docket Number: No. 95-3385,95-3385
• Parties: , 112 Ed. Law Rep. 51 PATRIOT PARTY OF ALLEGHENY COUNTY v. ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS; Mark Wolosik as Director of the Allegheny County Department of Elections, the Patriot Party of Allegheny County, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 253

95 F.3d 253

65 USLW 2198, 112 Ed. Law Rep. 51

PATRIOT PARTY OF ALLEGHENY COUNTY v. ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS; Mark Wolosik as

Director of the Allegheny County Department of

Elections, the Patriot Party of

Allegheny County, Appellant.

No. 95-3385.

United States Court of Appeals, Third Circuit.

Argued March 28, 1996.

Decided Sept. 9, 1996.

Sur Petition for Rehearing Nov. 4, 1996.

Cornish F. Hitchcock (argued), David C. Vladeck, Public Citizen Litigation Group, Washington, D.C., Sarah E. Siskind, Davis, Miner, Barnhill & Galland, Madison, WI, William A. Weiler, Jr., Weiler & Weiler, Jonathan B. Robison, Pittsburgh, PA, for Appellant.

Ira Weiss, County Solicitor, Allan J. Opsitnick (argued), Assistant County Solicitor, Office of Allegheny County Law Department, Pittsburgh, PA, for Appellees.

Before: GREENBERG, ROTH and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

The Allegheny County Patriot Party ("Party") alleges that two Pennsylvania election laws have prevented it from nominating its chosen candidate for school director, in violation of the Party's First and Fourteenth Amendment right of free association as well as its Fourteenth Amendment right to equal protection of the laws. The challenged laws, 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5), prevent a minor political party from "cross-nominating" a candidate for political office when that candidate has already been nominated We hold that the challenged sections of Pennsylvania's election code violate the Patriot Party's right of free association and its right to equal protection of the laws. The state election laws severely burden the Party's right to choose its standard-bearer and build its political organization, without supporting a compelling countervailing state interest. They also facially discriminate against minor political parties and their supporters. We will therefore reverse the judgment of the district court, enter judgment for the Patriot Party, and remand the case for further proceedings consistent with this opinion.

for the same office by another political party. The Party seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 to prevent enforcement of the challenged Pennsylvania laws in future elections.

The district court properly asserted subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(3)-(4). We have jurisdiction of the district court's final order pursuant to 28 U.S.C. § 1291.

I.

The facts of this case are not in dispute. The Pennsylvania Election Code explicitly allows candidates for certain local offices, including school director, to be nominated by both major parties. 25 Pa. Stat. Ann. § 2870(f). Pursuant to the Code, several candidates for school director in Pennsylvania's North Allegheny School District sought the nominations of both the Democratic and Republican parties in the May 1993 municipal primary. Three candidates were nominated by both major parties to run in the November 1993 general election for the four available four-year terms. In addition, Michael Eshenbaugh sought the nomination of both major parties for the one available two-year term. Although Eshenbaugh was nominated by the Democratic Party, he lost his bid for the Republican nomination.

In July 1993, the Patriot Party of Allegheny County, a minor political party, see 25 Pa. Stat. Ann. §§ 2831(a)-(b) and 2872.2, nominated four candidates for school director in the North Allegheny School District. Eshenbaugh was one of the Patriot Party nominees, and he willingly accepted his nomination by the Party. Two sections of the Pennsylvania Code, however, voided the Patriot Party's nomination of Eshenbaugh, because he had already sought the nomination of the major political parties. ¹ By letter dated August 10, 1993, Mark Wolosik, Director of the Allegheny County Department of Elections ("the Department"), explained that because Eshenbaugh had previously filed nomination petitions seeking the nominations of the major parties, Pennsylvania law prohibited him from filing nomination papers to run on a minor party ticket. Wolosik cited 25 Pa. Stat. Ann. § 2936(e) as the authority for his ruling, without noting that § 2911(e)(5) also prevented Eshenbaugh's dual candidacy. See supra note 1.

The Patriot Party challenges the constitutionality of 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) as applied in this case to prevent the Party from nominating Eshenbaugh. Because both parties agreed that the facts were undisputed, the district court treated the Department's motion to dismiss and the Our review of the district court's grant of summary judgment is plenary. Wheeler v. Towanda Area School Dist., 950 F.2d 128, 129 (3d Cir.1991); Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). We apply the same test the district court should have applied initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

                Patriot Party's motion for summary judgment as cross-motions for summary judgment.  See Patriot Party v. Allegheny County Dep't of Elections & Mark Wolosik, No. 93-1884, slip op. at 2 n. 1 (W.D. Pa.  June 7, 1995) (hereinafter  Patriot Party ).   The district court denied the Patriot Party's free association and equal protection claims, holding that the state's legitimate interest in regulating its ballot justified the restraints that the election code placed on minor parties.   Patriot Party, slip op. at 11
                

II.

Before reaching the merits of the Patriot Party's challenge, we must determine whether this controversy is justiciable. Eshenbaugh, running on the Democratic ticket only, won the two-year term vacancy for school director in the November 1993 election. Patriot Party, slip op. at 3 n. 3. As a result, we must ensure that this case has not been mooted by the fact that the election in question has taken place and by Eshenbaugh's success in that election. "An action becomes moot when '(1) there is no reasonable expectation that the alleged events will recur ... and (2) interim relief or events have completely eradicated the effects of the violation.' " Zellous v. Broadhead Assoc., 906 F.2d 94, 100 (3d Cir.1990) (quoting Ames v. Westinghouse Electric Corp., 864 F.2d 289, 291-92 (3d Cir.1988)).

Although the 1993 election has come and gone, the district court found that "[i]f it were permitted to do so, [the Patriot Party] would nominate a candidate who, like Mr. Eshenbaugh, has sought the nomination in the primary election by both major parties and who has succeeded in winning the nomination of one of those parties." Patriot Party, slip op. at 5. Since this case was filed, the Patriot Party has also challenged the Department's decision to reject the Party's cross-nomination of a candidate who was nominated by both the Democratic and Republican parties. See Patriot Party of Allegheny County v. Wolosik, Civ. No. 95-1175 (W.D.Pa.). Although this latter controversy differs from our factual scenario, it indicates the likelihood that cross-nominations by third parties will continue to vex the Pennsylvania Department of Elections and the courts.

Because cross-nominations by minor political parties are still prohibited by the Pennsylvania election laws, this case is capable of repetition, yet evading review. Norman v. Reed, 502 U.S. 279, 287-88, 112 S.Ct. 698, 704-05, 116 L.Ed.2d 711 (1992) (citing Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494-95, 23 L.Ed.2d 1 (1969)). There is "every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints...." Id. We hold therefore that this case is justiciable.

III. Freedom of Association

States have broad power to regulate the time, place, and manner of elections, but they must do so within the limits established by the First and Fourteenth Amendments to the U.S. Constitution. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 1019-20, 103 L.Ed.2d 271 (1989). The protection of the First and Fourteenth Amendments extends to partisan political organizations as well as to individuals. Id. at 224, 109 S.Ct. at 1020 ("It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments") (citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986); Elrod v. Burns, 427 U.S. 347, 357, 96 S.Ct. 2673, 2681-82, 49 L.Ed.2d 547 (1976) (plurality opinion)). Thus, a political party, such as the Patriot Party, may challenge state regulations that allegedly burden its fundamental constitutional right to freedom of association.

                See, e.g., Eu, 489 U.S. 214, 109 S.Ct. 1013;   Tashjian, 479 U.S. 208, 107 S.Ct. 544
                

Although no dispositive precedent explicitly discusses cross-nomination, a number of Supreme Court decisions touch upon the rights of political parties. These cases set out a general framework for analyzing constitutional challenges to state election laws. Norman, 502 U.S. at 288-89, 112 S.Ct. at 704-06; Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983). The Court generally applies a fact intensive balancing test that weighs the burden that the state election law places on a political party against the state's asserted justification for the law.

To determine whether a state election law violates the U.S. Constitution, we first examine whether the challenged law burdens rights protected by the First and Fourteenth Amendments. Eu, 489 U.S. at 222, 109 S.Ct. at 1019-20. If the law does burden protected rights, we must gauge the character and magnitude of the burden on the plaintiff and weigh it against the importance of the interests that the state proffers to justify the burden. Norman, 502 U.S. at...