Trinsey v. COM. OF PA., DEPT. OF STATE

• Decision Date: 10 June 1991
• Docket Number: Civ. A. No. 91-2749.
• Citation: 766 F. Supp. 1338
• Parties: John S. TRINSEY, Jr. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BOARD OF ELECTIONS, the Governor and Secretary of the Commonwealth.
• Court: U.S. District Court — Eastern District of Pennsylvania

766 F. Supp. 1338

John S. TRINSEY, Jr. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BOARD OF ELECTIONS, the Governor and Secretary of the Commonwealth.

Civ. A. No. 91-2749.

United States District Court, E.D. Pennsylvania.

June 10, 1991.

John S. Trinsey, Jr., pro se.

Jerome T. Foerster, Deputy Atty. Gen., for defendants.

OPINION

CAHN, District Judge.

This case arose after the tragic death of Senator John Heinz on April 4, 1991 created a vacancy in Pennsylvania's representation in the United States Senate. The pro se plaintiff, John S. Trinsey, Jr., seeks a determination pursuant to 42 U.S.C. § 1983¹ that 25 Pa.Stat.Ann. § 2776 violates the Seventeenth Amendment to the United States Constitution.

Section 2776, which governs the special election of United States Senators, provides, in relevant part,

Whenever a vacancy shall occur in the office of United States Senator, said vacancy shall be filled for the unexpired term by the vote of the electors of the State at a special election to be held at the time of the next general or municipal election, occurring at least ninety (90) days after the happening of such vacancy. ... Candidates to fill vacancies in the office of United States Senator shall be nominated by political parties, in accordance with the party rules relating to the filling of vacancies, by means of nomination certificates....

The plaintiff has filed a motion for a Temporary Restraining Order and a motion for a Preliminary Injunction. He also seeks, pursuant to 28 U.S.C. § 2201, a declaratory judgment that the statute is unconstitutional.² The Commonwealth has filed a memorandum opposing injunctive relief and has moved to dismiss the case. The court held a hearing on the matter on May 29, 1991.

I. BACKGROUND

This plaintiff challenges the manner in which the Commonwealth of Pennsylvania fills vacancies in its Senatorial representation. The Seventeenth Amendment itself provides:

When vacancies happen in the representation of any State in the senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Pennsylvania's legislature has directed that the two major political parties may choose, according to party rules, the nominees who will run in the general election. Both major parties nominate by party committee.

The plaintiff, who challenges the law as a Republican voter and as a potential Republican candidate,³ focuses his attack on the nomination procedure for party candidates.⁴ As a potential candidate, Mr. Trinsey complains that the statute operates to deny him an opportunity to participate in the Republican primary. As a voter, the plaintiff contends that this statute violates the Seventeenth Amendment to the United States Constitution because it "places the power to elect a Senator not in the hands of the People of Pennsylvania but rather in the hands of small groups of Republican and Democratic Party Committee members." Answer to Motion to Dismiss at 1. The Commonwealth defends its law on the grounds that it protects valid and compelling state interests in protecting the integrity of the electoral process and limiting the term of an appointed Senator. Additionally, Pennsylvania argues that it has no constitutional duty to hold a primary election.

The Eleventh Amendment does not bar this action because the plaintiff is seeking declaratory and injunctive relief only. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Melo v. Hafer, 912 F.2d 628, 635 n. 5 (3d Cir.1990), cert. granted ___ U.S. ___, 111 S.Ct. 1617, 113 L.Ed.2d 715 (1991). Moreover, civil rights plaintiffs may pursue Section 1983 claims for injunctive relief against state officials sued in their official capacity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989); Melo, 912 F.2d at 635. The court will therefore turn to the merits of the plaintiff's claim.

II. DISCUSSION

A. The Right to Vote

The right to vote for Representatives and Senators has its foundation in the qualifications clauses of Article I and the Seventeenth Amendment. The Seventeenth Amendment provides that the Senatorial "electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." U.S. Const. amend. XVII, § 1.⁵ Article I contains an identical clause establishing the qualifications of the electors of the House of Representatives. U.S. Const. art. I, § 2, cl. 1.

Citizens of the United States therefore undeniably have a right to vote for their national representatives. See United States v. Classic, 313 U.S. 299, 314, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368, reh'g denied, 314 U.S. 707, 62 S.Ct. 51, 86 L.Ed. 565 (1941) ("The right of the people to choose ... is a right established and guaranteed by the Constitution"); see also Kauffman v. Osser, 321 F.Supp. 327, 333 (E.D.Pa. 1971) (right to vote for members of Congress fundamentally based on Qualifications Clauses in the Constitution). It is well established that the right to vote is fundamental, see, e.g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 1755, 26 L.Ed.2d 370 (1970); Kramer v. Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); Katzenbach v. Morgan, 384 U.S. 641, 654, 86 S.Ct. 1717, 1725, 16 L.Ed.2d 828 (1966); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964); Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963); Classic, 313 U.S. at 315, 61 S.Ct. at 1037; Burdick v. Takushi, 927 F.2d 469, 473 (9th Cir.1991), and is protected against private as well as state interference. See Classic, 313 U.S. at 314-15, 61 S.Ct. at 1037-38; Ripon Soc'y v. National Republican Party, 525 F.2d 567, 599 (D.C.Cir.1975) (Tamm, J., concurring); see also Developments in the Law-Elections, 88 Harv.L.Rev. 1111, 1158-59 (1975).

Furthermore, because "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement ... must be carefully and meticulously scrutinized." Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). As the Court stated in Wesberry, supra,

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

376 U.S. at 17, 84 S.Ct. at 535.

The issue before this court, whether the right to vote must be protected at the nomination stage, has not been squarely presented before. It is clear that the states could choose to run general elections without the prior selection of major political party nominees by primary or otherwise. See Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 218, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986) (states could for administrative and financial reasons eliminate selection of major party nominees).

Pennsylvania, however, has chosen to have the major parties make nominations prior to the general election. Because the choice of party nominees plays a central role in determining the eventual electoral outcome, the question of whether those nominees must be chosen democratically is a valid one. See Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969) ("all procedures used by a State as an integral part of the election must pass muster against charges of discrimination or of abridgment of the right to vote."). In addressing this issue, the court will consider the history and language of the Amendment itself, as well as analogous Court precedent.

B. The Seventeenth Amendment and the Nomination Process

The introduction in Congress of resolutions proposing a constitutional amendment to accomplish popular election of Senators began in 1825. During the early 1870's, members of the House rapidly increased the frequency with which they introduced such resolutions. Although the House repeatedly voted overwhelmingly in favor of such resolutions, the Senate resisted the change. In fact, the proposed amendment did not come to a vote in the Senate until 1911. 1 G. Haynes, The Senate of the United States 96-7 (1960). Thus, achieving popular election of Senators was no mean task; only after pressure for a constitutional convention grew did the Senate respond to the desire for popular election. See Sherman, The Recent Constitutional Amendments, 23 Yale L.J. 129, 146 (1913).

Most citizens were dissatisfied with the original manner of Senatorial election for numerous reasons. See generally G. Haynes, supra, at 85-95. However, the ability of political party leaders to control the Senatorial choice was a major motivation for reform. Those party managers had a "phenomenal skill in the manipulation of legislators ... out of all proportion to their hold upon the voters." 1 G. Haynes, supra, at 93.⁶ One purpose of the Amendment, therefore, was to wrest control of the Senate from small elite groups who controlled the political parties. See, e.g., 46 Cong.Rec. 2253 (1911) (statement of Sen. Beveridge) (popular election will correct situation whereby party managers choose Senators); 46 Cong.Rec. 1106 (1911) (statement of Sen. Borah) (framers of Constitution, when...