Williams v. Tucker

• Decision Date: 23 September 1974
• Docket Number: Civ. No. 74-665.
• Citation: 382 F. Supp. 381
• Parties: Honorable Lawrence G. WILLIAMS and Charles Sexton, Individually and on behalf of a class of registered voters, Plaintiffs, v. C. Dolores TUCKER, Secretary of the Commonwealth of Pennsylvania, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

382 F. Supp. 381

Honorable Lawrence G. WILLIAMS and Charles Sexton, Individually and on behalf of a class of registered voters, Plaintiffs, v. C. Dolores TUCKER, Secretary of the Commonwealth of Pennsylvania, Defendant.

Civ. No. 74-665.

United States District Court, M. D. Pennsylvania.

September 13, 1974.

As Amended September 23, 1974.

Francis X. Nolan, Donsky, Katz, Levin & Dashevsky, P. C., Philadelphia, Pa., for plaintiffs.

Israel Packel, Atty. Gen., Commonwealth of Pennsylvania, Melvin R. Shuster, David L. Kurtz, Deputy Attys. Gen., Harrisburg, Pa., for defendant.

Henry B. FitzPatrick, Jr., Liebert, Short, FitzPatrick & Lavin, Philadelphia, Pa., Edward Friedman, Harrisburg, Pa., for intervenor, Stephen J. McEwen.

Before ROSENN, Circuit Judge, and SHERIDAN and NEALON, District Judges.

MEMORANDUM

PER CURIAM:

Plaintiffs, Lawrence G. Williams, the incumbent United States Congressman for the Seventh Congressional District of Pennsylvania, and Charles Sexton, a registered voter in the Seventh Congressional District, the latter on behalf of all voters in said district who support the independent candidacy of Congressman Williams, filed this action seeking declaratory and injunctive relief against the defendant, C. Dolores Tucker, Secretary of the Commonwealth of Pennsylvania. The defendant is the chief election officer of Pennsylvania and is charged by law with the duty of receiving and accepting nomination papers for federal and state offices, 25 P.S. § 2621.

This action is properly brought under the Civil Rights Act, 42 U.S.C.A. § 1983, and the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, and federal jurisdiction is predicated on 28 U.S.C.A. § 1343. Specifically, plaintiffs request the court to declare unconstitutional a section of the Pennsylvania Election Code, 25 P.S. § 2911(e)(5), enjoin its enforcement by the Commonwealth, and order the defendant to accept and file plaintiff Williams' nomination papers and place his name on the 1974 general election ballot as an independent candidate for United States Congress. Since plaintiffs seek injunctive relief restraining state officials from the enforcement, operation and execution of a state statute on the ground of its unconstitutionality, a three-judge court has been convened pursuant to 28 U.S.C.A. § 2281. In accordance with Rule 65(a) (2) of the Federal Rules of Civil Procedure, the case was set down for non-jury trial on the merits thereby consolidating the trial on the merits with the hearing on the preliminary injunction.

The Pennsylvania Election Code, 25 P.S. § 2600 et seq., establishes two methods of nomination for political office: (1) by selection at a primary election and (2) by nomination papers. The former method is limited to candidates seeking nomination by a political party; the latter method must be utilized by those seeking the nomination of a political body. A political party is an organization which has polled a significantly large number of votes at the preceding general election to entitle it to nominate all its candidates for office at primaries.¹ An organization which has not polled the requisite number of votes at the preceding general election is designated a political body and cannot nominate candidates at primaries; it must nominate candidates by nomination papers.²

In order to qualify for the primary ballot, the candidate of a political party must file a nomination petition signed by a requisite number of registered members of his party.³ All nomination petitions must be filed on or before the tenth Tuesday prior to the primary election.⁴ The primary preceding each general election is held the third Tuesday of May, except in the year of the nomination of a President of the United States when it is held on the fourth Tuesday of April.⁵ If the candidate wins the primary election, he runs as his party's nominee for the particular office at the ensuing general election.

Political bodies cannot use the primary election machinery for nomination of their candidates. A political body nominee is nominated directly by the body, through filing nomination papers containing a requisite number of signatures.⁶ The requisite number of signatures must be obtained in a three-week period beginning the tenth Wednesday before the primary.⁷ A person is qualified to sign a nomination paper if he is a registered voter of the electoral district wherein the candidate is running for office.⁸ A person can sign a nomination paper and vote in the primary, but each voter can sign only one nomination paper for each office to be filled.⁹ All nomination papers must be filed on or before the seventh Wednesday prior to the primary election.¹⁰

This case was submitted to the court on a stipulation of facts.¹¹ The following are the undisputed facts. Plaintiff Williams, the incumbent Congressman for the Seventh District, was defeated in the Republican primary in May 1974. Thereafter, plaintiff Sexton formed an unincorporated association or political body designated as "independents" which circulated nominating papers and obtained 2,614 acceptable signatures. This was more than the statutorily required two per centum of the largest entire vote cast for any officer, except a judge of a court of record, elected at the last preceding election in the Seventh District, 25 P.S. § 2911(b), which in this case equals 2,452 required signatures. On August 12, 1974, the nomination papers, containing the requisite number of signatures, were submitted for filing by Congressman Williams. The papers were rejected by agents of the defendant at the State Bureau of Elections on the ground that Williams had been an unsuccessful candidate for the Republican party nomination in the spring primary and that therefore he could not append to the proffered nomination papers an affidavit that complied with 25 P.S. § 2911(e)(5). Section 2911(e)(5) provides: "There shall be appended to each nomination paper offered for filing an affidavit of each candidate nominated therein, stating— . . . (5) that his name has not been presented as a candidate by nomination petitions for the same office to be voted for at the ensuing primary election, nor has he been nominated by any other nomination papers filed for the same office." The language of this section is analogous to that of 25 P.S. § 2936 which in part provides: "No nomination petition, nomination paper or nomination certificate shall be permitted to be filed if— . . . (e) in the case of nomination papers, if the candidate named therein has filed a nomination petition for any public office for the ensuing primary, or has been nominated for any such office by nomination papers previously filed; . . . ."

In resolving the issues before the court, we must examine the basic structure of the pertinent provisions of the Pennsylvania Election Code. Our examination reveals that there are two additional sections of the Election Code, 25 P.S. § 2911(b) and 25 P.S. § 2913(b) and (c), which are inherently involved in the legal issues raised by the facts of this case. Section 2911(b) fixes the signature requirement on nomination papers of candidates of political bodies at two per centum of the largest entire vote cast for any candidate, except a judge of a court of record, elected at the last general election. Section 2913(b) requires that these signatures be obtained in a three-week period beginning the tenth Wednesday before the primary. Section 2913(c) states that all nomination papers must be filed on or before the seventh Wednesday prior to the primary. Thus, Sections 2913(b) and (c), if constitutional, bar the acceptance of the nomination papers submitted for filing in the instant case.

Plaintiffs rely on the continued vitality of People's Party v. Tucker, M. D.Pa.1972, 347 F.Supp. 1, and Consumer Party v. Tucker, E.D.Pa., 364 F.Supp. 594 (decided September 28, 1973), for their contention that Pennsylvania law entitles Williams to file nomination papers as an independent candidate after the Republican primary. In People's Party a three-judge district court concluded that the three-week period established in Section 2913(b) for obtaining the 35,624 signatures needed by a presidential candidate to satisfy the two per centum requirement of Section 2911(b) is so short and remote from the election as to be unreasonable. The court held that Section 2913(b) fails to serve any valid state purpose, effectively blocks access to the ballot by all but the most disciplined political organizations, and hence violates the right to appear on the ballot, the right to cast an effective vote, and the right to associate for the advancement of political beliefs protected by the first amendment. Having declared Section 2913(b) unconstitutional, the court enjoined its enforcement as to federal and state-wide offices to be filled in the November 1972 election and extended the filing time for nomination papers to August 14, 1972.

In Consumer Party plaintiff Weiner on August 9, 1973, had submitted to the City Commissioners of the City and County of Philadelphia nomination papers of the Consumer Party bearing the requisite number of signatures purporting to nominate Weiner as a candidate for the office of City Controller in the November 1973 election. The City Commissioners, who constitute the Board of Elections of the City and County of Philadelphia and are charged by law with the duty of accepting nomination papers for other offices to be filled by voters of the County of Philadelphia, refused to file the nomination papers on the ground that the requirements of 25 P.S. § 2913(b) and (c) — that the required signatures be gathered in a three-week period beginning 265 days before the general election and the nomination papers be filed on or before the seventh Wednesday before the primary election — had not been met. The Consumer Party had been one of the party plaintiffs in People's Party, supra. Relying on People's Party and the doctrine of res judicata, the...