Reform Party of Allegheny County v. Allegheny County Dept. of Elections

• Decision Date: 30 March 1999
• Docket Number: Nos. 96-3677,97-3359,s. 96-3677
• Citation: 174 F.3d 305
• Parties: 134 Ed. Law Rep. 740 REFORM PARTY OF ALLEGHENY COUNTY v. ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS; Mark Wolosik, Director of the Allegheny County Department of Elections, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 305

174 F.3d 305

134 Ed. Law Rep. 740

REFORM PARTY OF ALLEGHENY COUNTY v. ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS; Mark Wolosik Director of the Allegheny County Department of Elections, Appellants.

Nos. 96-3677, 97-3359.

United States Court of Appeals Third Circuit.

Argued Dec. 12, 1997.

Reargued Jan. 13, 1999.

Decided March 30, 1999.

Kerry Fraas, County Solicitor, Allan J. Opsitnick (Argued), Assistant County Solicitor, Michael McAuliffe Miller, Assistant County Solicitor, Allegheny County Law Dept., Pittsburgh, PA, for Appellants.

Cornish F. Hitchcock (Argued), Public Citizen Litigation Group, Washington, D.C., Sarah E. Siskind, Miner, Barnhill & Galland, Madison, WI, Jonathan B. Robison, Pittsburgh, PA, for Appellee.

Argued Dec. 12, 1997.

Before: NYGAARD, ALITO, Circuit Judges and DEBEVOISE, District Judge. ¹

Reargued Jan. 13, 1999.

Before: BECKER, Chief Judge, SLOVITER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, McKEE, RENDELL and ROSENN, Circuit Judges

OPINION OF THE COURT

ROTH, Circuit Judge:

In this en banc review, we must determine to what extent our earlier decision in Patriot Party of Allegheny County v. Allegheny County Dep't of Elections, 95 F.3d 253 (3d Cir.1996) (Patriot Party I), remains good law in the wake of the Supreme Court's decision in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). In Patriot Party I, we held that the Pennsylvania statutes at issue, which in certain local elections bar cross-nomination of candidates by minor parties, but not by major parties, violated the Patriot Party's ² right to freedom of association under the First and Fourteenth Amendments, as well as its right to equal protection of the laws under the Fourteenth Amendment. We now conclude that the decision in Timmons, in upholding a Minnesota "anti-fusion" statute against a First Amendment attack, does not undercut our equal protection analysis in Patriot Party I. We will, therefore, reaffirm our holding that the Pennsylvania statutes here, as applied to the local elections in question, violate the Patriot Party's right to equal protection of the laws.

I. Background

This en banc review implicates two separate but related cases. In both cases, the Patriot Party challenged the constitutionality of Pennsylvania's ban on minor party "cross-nominations" in certain local offices, 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5), as a violation of the Patriot Party's right to freedom of association and its right to the equal protection of the laws. In essence, the challenged statutes prevent minor political parties from cross-nominating a candidate for certain local offices when that candidate has already been nominated for the same office by another political party. The major parties, however, are allowed to engage in cross nomination or "fusion" for those local offices. ³ As a consequence, while Pennsylvania prohibits all parties from cross-nominating the same person for most state offices, it makes an exception in primary elections for five local offices, ⁴ in which major parties are permitted to cross-nominate each other's candidates, but minor parties are prohibited from so doing. ⁵

The undisputed facts of the first case (No. 97-3359) are set forth in Patriot Party I, but we summarize them briefly here. The case stemmed from the Patriot Party's attempt to nominate Michael Eshenbaugh as a candidate for school director in Pennsylvania's North Allegheny School District in the November 1993 general election. This nomination was barred by the application of the fusion ban, because Eshenbaugh had already sought the nomination of both major parties in the May 1993 municipal primary, in which he had secured the nomination of the Democratic Party, but not of the Republican Party.

In February 1994, the Patriot Party filed suit for declaratory and injunctive relief under 42 U.S.C. § 1983 against the Allegheny County Department of Elections and its director (collectively, "the Department"), alleging that the two relevant sections of the Pennsylvania Election Code violate the Patriot Party's right of free association under the First and Fourteenth Amendments, as well as its right to equal protection of the laws under the Fourteenth Amendment. The District Court granted summary judgment for the Department. On appeal, a divided panel of this court reversed the District Court's ruling on September 9, 1996, in Patriot Party I. On November 4, 1996, we denied the Department's petition for rehearing en banc. The Department did not seek a writ of certiorari. On remand, the District Court entered an order granting declaratory and injunctive relief in favor of the Patriot Party.

Four months later, on April 28, 1997, the Supreme Court issued its decision in Timmons. As a result, on April 30, the Department filed a motion for relief from judgment in this case pursuant to Fed.R.Civ.P. 60(b). The District Court denied the requested relief. The Department appealed that order, and another panel of this court affirmed it in an opinion filed June 15, 1998 ("Patriot Party II "), which we will discuss further in connection with the second case.

The undisputed facts of the second case (No. 96-3677) also involve a nomination to the office of school director in the North Allegheny School District. On May 13, 1995, the Patriot Party selected several candidates for this office, including Barbara Childress. On May 16, 1995, before the municipal primary elections, Childress perfected her nomination as one of the Patriot Party's candidates by filing nomination papers with the Department.

Childress also sought the nominations of the Republican and Democratic parties, and in the municipal primary she won both of these nominations. On May 24, 1995, the Department informed Childress that, since she had previously filed nomination petitions seeking the nominations of the major parties, she was prohibited from seeking the nomination by a minor party.

The Patriot Party brought an action pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief, alleging once again that the two pertinent sections of the Pennsylvania Election Code violate the Patriot Party's right of free association and its right to equal protection of the laws. The Department filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), while the Patriot Party filed a motion for summary judgment under Fed.R.Civ.P. 56. In October 1996 (several months before Timmons was decided), the District Court, relying on this Court's decision in Patriot Party I, granted the Patriot Party's motion for summary judgment, denied the Department's motion to dismiss, and entered an order granting the requested injunctive and declaratory relief. On appeal, that order was also affirmed in Patriot Party II. In Patriot Party II, the panel recognized that Patriot Party I had held that the Pennsylvania laws violated the equal protection rights of the Patriot Party. The panel concluded that it was bound by Patriot Party I insofar as the equal protection holding had not been overruled by Timmons.

On June 30, 1998, the Department filed a petition for rehearing en banc, asking us to decide whether Patriot Party I (and by extension, Patriot Party II ) has been overruled by Timmons. On July 22, 1998, we granted the petition for rehearing en banc. For the reasons we set out below, we conclude that Patriot Party I has not been overruled to the extent that it held that the Patriot Party's right to equal protection of the laws was violated by the ban on minor party fusion in the local elections in question.

II. Patriot Party I

and Timmons

To begin our discussion, it is helpful first to review the holdings in Patriot Party I and in Timmons. In Patriot Party I, a panel of this court held that 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5), which prohibit minor parties, but not major parties, from cross-nominating candidates in certain local elections, violate minor parties' rights to freedom of association and equal protection of the laws.

In its freedom of association analysis, the Patriot Party I panel applied the standard set forth in Supreme Court precedent, including Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), and Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The panel reiterated the standard:

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. 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. We examine not only the legitimacy and strength of the state's proffered interests, but the necessity of burdening the plaintiff's rights in order to protect those interests. If the burden on the plaintiff's rights is severe, the state's interest must be compelling and the law must be narrowly tailored to serve the state's interests.

Patriot Party I, 95 F.3d at 258 (citations omitted).

The panel, applying the standard, concluded that the Pennsylvania statutes infringed upon the Patriot Party's right of free association in two ways: "First, the restriction prevents the Party from nominating the standard bearer who the Party thinks will 'most effectively advance [its] program and platform.' Second, the challenged election laws deprive the Patriot Party of an opportunity to 'fuse' its votes with those of a major party and thereby to make inroads into the political process." Id. Because the panel found these burdens to be severe, it held that Pennsylvania "must demonstrate that these laws are narrowly tailored to serve a compelling state interest." Id. at 264. The panel concluded, however, that the justifications offered by the Department...