                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-1996

Patriot Party Allegheny v. Allegheny Co. Dept of
Elections
Precedential or Non-Precedential:

Docket 95-3385




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 95-3385



                PATRIOT PARTY OF ALLEGHENY COUNTY

                                v.

            ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS;
             MARK AS DIRECTOR OF THE ALLEGHENY COUNTY
                     DEPARTMENT OF ELECTIONS

                                      THE PATRIOT PARTY
                                      OF ALLEGHENY COUNTY,

                                      Appellant.



         On Appeal from the United States District Court
            for the Western District of Pennsylvania
               (D.C. Civil Action No. 93-cv-01884)



                               Argued March 28, 1996

     Before: GREENBERG, ROTH and ROSENN, Circuit Judges

              (Opinion Filed    September 9, l996)




Cornish F. Hitchcock, Esq. (Argued)
David C. Vladeck, Esq.
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, D.C. 20009-1001


Sarah E. Siskind, Esq.
Davis, Miner, Barnhill & Galland
44 East Mifflin Street
Suite 803
Madison, Wisconsin 53703


William A. Weiler, Jr., Esq.
Weiler & Weiler
4762 Liberty Avenue
Pittsburgh, PA 15224

Jonathan B. Robison, Esq.
712 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219

         Attorneys for Appellant

Ira Weiss, Esq.
County Solicitor
Allan J. Opsitnick, Esq. (Argued)
Assistant County Solicitor
Office of Allegheny County Law Department
445 Fort Pitt Boulevard
300 Fort Pitt Commons Building
Pittsburgh, PA 15219

         Attorneys for Appellees




                        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 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.
         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.
         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. 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 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.
         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 (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 (1977).
                               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 (1992) (citing Moore v. Ogilvie, 394 U.S.
814, 816 (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 (1989). The protection of the First and
Fourteenth Amendments extends to partisan political organizations
as well as to individuals. Id. at 224 ("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
(1986); Elrod v. Burns, 427 U.S. 347, 357 (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; Tashjian, 479 U.S. 208.
         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; Anderson v.
Celebrezze, 460 U.S. 780, 788 (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. 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 288-89; Anderson, 460 U.S. at 789. 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. Anderson, 460 U.S. at 789. 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. Norman, 502 U.S. at 289; Eu, 489 U.S. at
222; see also Twin Cities Area New Party v. McKenna, 73 F.3d 196,
198 (8th Cir. 1996), cert. granted, 116 S. Ct. 1846 (1996); Swamp
v. Kennedy, 950 F.2d 383, 385 (7th Cir. 1991), cert. denied, 505
U.S. 1204 (1992)). We proceed, therefore, by first examining
the burden that the challenged Pennsylvania election laws place
on the Patriot Party's constitutional rights. We then consider
the justification that Pennsylvania has proffered to support the
imposition of this burden.
                 A. Burden on the Patriot Party
         The Patriot Party alleges that the State's prohibition
of cross-nomination by minor parties infringes upon its First and
Fourteenth Amendment 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. We consider these alleged
burdens in turn.
         An "antifusion statute" that prevents a political party
from nominating its candidate of choice burdens a political
party's First and Fourteenth Amendment rights. The Supreme Court
has recognized that "[f]reedom of association also encompasses a
political party's decisions about the identity of, and the
process for electing, its leaders." Eu, 489 U.S. at 229-30
(citing Democratic Party of the U.S. v. Wisconsin, 450 U.S. 107,
123-24 (1981) (State cannot dictate process for selecting
delegates to national convention) and Cousins v. Wigoda, 419 U.S.
477 (1975) (State cannot dictate who may sit as convention
delegate)). In Eu v. San Francisco County Democratic Cent.
Comm., for example, the Court reviewed the constitutionality of
California election laws that, inter alia, prohibited the
governing bodies of various political parties from officially
endorsing candidates in their own party primaries. 489 U.S. at
216. The Court stated that
         [f]reedom of association means not only that an
         individual voter has the right to associate with the
         political party of her choice, . . . but also that a
         political party has a right to "identify the people who
         constitute the association," . . . and to select a
         "standard bearer who best represents the party's
         ideologies and preferences."
Id. at 224 (emphasis added) (citations omitted). The Court
recognized that the State's ban on endorsement by the party
leadership was "clearly a restraint on the right of association,"
id. at 225 (citing Citizens Against Rent Control/Coalition for
Fair Housing v. Berkeley, 454 U.S. 290, 296 (1981)). It held
therefore that because the state ban on party endorsements
burdened free speech and free association, it could survive
constitutional scrutiny only if it served a compelling
governmental interest. Id. at 225.
         Dicta from Tashjian v. Republican Party of Connecticutalso
indicates that political parties have a protected interest
in selecting their own candidates, even if the nominee is not a
party member. The Court explained:
         Were the State to . . . provide that only Party members
         might be selected as the Party's chosen nominees for
         public office, such a prohibition of potential
         association with nonmembers would clearly infringe upon
         the rights of the Party's members under the First
         Amendment to organize with like-minded citizens in
         support of common political goals.
479 U.S. at 215; see also id. at 235-36 (Scalia, J., dissenting)
("Nor is there any question of restricting the ability of the
Party's members to select whatever candidate they desire").
         Like the state election laws in Eu and the hypothetical
restriction in Tashjian, the Pennsylvania election laws prohibit
a political party from associating with its candidate of choice.
Eshenbaugh was the Patriot Party's chosen standard bearer, and he
was willing to serve as the Party's candidate. Nevertheless,
Pennsylvania's election laws denied the Party the right to
nominate him. By denying the Patriot Party the right to choose
its standard bearer, the Pennsylvania election laws burdened the
Party's right of free association. See Eu, 489 U.S. at 229-30
(citing Democratic Party of the U.S., 450 U.S. at 123-24 and
Cousins, 419 U.S. 477); Tashjian, 479 U.S. at 215.
         The fact that the state election law in this case
prevented the Patriot Party from nominating only a handful of
candidates (those who had already sought the nomination of other
political parties) does not necessarily lessen the burden on the
Party's associational rights. In order to assess this burden, we
must look to the actual effect that the restriction will have on
the party. An analogy to Norman v. Reed illustrates this point.
In Norman, the Supreme Court reviewed an Illinois decision that
barred appellees from appearing on the ballot in a Cook County
election as members of the Harold Washington Party ("HWP"). 502
U.S. at 282. State law prohibited appellees from using the HWP
name in Cook County because they had already used that name to
establish a party in Chicago. Id. at 286-87. The state court
decision, if upheld, would thus have prevented a political party
already established in one locality from branching into other
parts of the state under the same name.
         The Supreme Court reversed the state court decision and
held that the court's application of the Illinois law violated
the HWP's First Amendment right of free association. Id. at 290.
Even though the statute prevented new political parties from
using only a handful of names (those names adopted by preexisting
parties), the Court looked to the actual effect that the
restriction would have on the HWP. According to the Court, the
state court's "Draconian construction of the statute would
obviously foreclose the development of any political party
lacking the resources to run a statewide campaign." Id. at 289.
         Thus, the fact that the restriction in Norman was so
narrowly tailored that it prevented a political party from
choosing only the few names that had already been chosen by other
political parties was not dispositive. The Court looked instead
to the effect that the law would have on the HWP's efforts to
organize within the state. Likewise, the fact that the
Pennsylvania laws prevent minor political parties from choosing
only a few candidates is not dispositive. The critical issue,
rather, is the effect of the laws on the ability of minor parties
to participate meaningfully in the political process. SeeWilliam R.
Kirschner, Note, Fusion and the Associational Rights
of Minor Political Parties, 95 Colum. L. Rev. 683, 699 (1995).
As the Court of Appeals for the Eighth Circuit has observed, the
"simplistic view that the [minor party] can just pick someone
else [to be its candidate] does not lessen the burden on the
[minor party's] right to nominate its candidate of choice." Twin
Cities, 73 F.3d at 198 (citing Norman, 502 U.S. at 289). Because
Pennsylvania's election laws prevent the Patriot Party from
nominating its standard bearer of choice, those laws place a
cognizable constitutional burden on the Party's right to free
association.
         The Patriot Party next argues that in addition to
nullifying its choice of candidate, Pennsylvania's statutory ban
on cross-nomination burdens the Party's ability to build an
effective political organization. Although most states ban
cross-nomination directly or indirectly, ten states, including
New York, have a tradition of allowing minor parties to appear on
the ballot and "fuse" votes with major parties. See Kirschner,
supra at 683, 685 nn.13-14. In these states, minor parties have
exerted considerable and sometimes decisive influence on the
outcome of local, state, and national elections. Id. at 683,
700-04. At least one historian has documented that in the late
nineteenth century, fusion "helped to maintain a significant
third party tradition by guaranteeing that dissenters' votes
could be more than symbolic protest, that their leaders could
gain office, and that their demands might be heard." Peter H.
Argersinger, "A Place on the Ballot": Fusion Politics and
Antifusion Laws, 85 Am. Hist. Rev. 287, 288-89 (1980).
         A brief explanation of vote fusion demonstrates its
importance to minor parties. See Twin Cities, 73 F.3d at 197-98;
Kirschner, supra at 687. In the typical "winner takes all"
election, a party's electoral success depends upon its ability to
win the election or to contribute meaningfully to a candidate's
victory. Minor parties are usually unable to command sufficient
votes to win the general election on their own. Therefore, even
voters who support the minor party's platform are reluctant to
"waste" votes on minor party candidates perceived as having no
serious chance of winning. As the Court of Appeals for the
Eighth Circuit has observed, individuals who support a minor
party are confronted with a no-win proposition; they may "cast
their votes for candidates with no realistic chance of winning,
defect from their party and vote for a major party candidate who
does, or decline to vote at all." Twin Cities, 73 F.3d at 199.
         Cross-nomination allows voters to cast their vote for a
minor party without "wasting" their vote on a candidate with no
prospect of winning the election. In states that allow cross-
nomination, several parties may nominate the same candidate. A
voter simply casts his vote for the candidate on any one of the
party lines. The general election votes that the candidate
receives on each party line are added together to determine the
winner. For example, if the Patriot Party had been allowed to
cross-nominate Eshenbaugh for school director, Eshenbaugh would
have been permitted to add the votes that he received on the
Democratic and Patriot Party lines and count all of those votes
toward his election (just as Pennsylvania allowed the three
candidates nominated by both major parties to combine the votes
they received on each major party line). An individual casting
his vote on the Patriot Party line could, therefore, register his
support for the Patriot Party platform without "wasting" his vote
on a third party candidate who stands little chance of being
elected. The Patriot Party notes:
              The most vivid example of fusion's benefits for
         minor parties occurs where a candidate is elected to
         office as the nominee of two parties, one major and one
         minor, and the margin of victory is smaller than the
         number of votes the candidate received on the minor
         party's line. The resulting tally . . . demonstrates
         that the minor party's support was crucial.
Appellant's Brief at 6.
         By thus demonstrating its electoral appeal, the minor
party may win recognition for its policy positions as well as
increased support from the electorate. If significant numbers of
voters cast ballots for a major party candidate on a minor party
line, the candidate may infer that voters like the candidate's
position on issues that the minor party has raised. The more
apparent popularity of the minor party's platform would enhance
its standing with candidates and with voters and allow the minor
party to compete more effectively for votes.
         Moreover, minor political parties are not the step-
children of the American political process. Core First and
Fourteenth Amendment principles protect their rights to organize
and to compete for votes. See, e.g., Williams v. Rhodes, 393
U.S. 23, 31-32 (1968) (noting that laws that give "established
parties a decided advantage over any new parties struggling for
existence" burden right to associate). In a line of cases
including Williams v. Rhodes, Anderson v. Celebrezze, and Norman
v. Reed, the Supreme Court struck down statutes or practices that
unnecessarily burdened the ability of minor political parties to
participate in the political process.
         In Williams, the Court reviewed state election laws
that made it "virtually impossible for any party to qualify on
the ballot except the Republican and Democratic Parties." 393
U.S. at 25. The Court found that the election laws substantially
burdened both the right to vote and the right to associate and
that their application only to minor parties resulted in a denial
of equal protection of the laws. Id. at 30-31. In striking the
challenged law, the Court expounded a principle that guides our
analysis:
         There is, of course, no reason why two parties should
         retain a permanent monopoly on the right to have people
         vote for or against them. Competition in ideas and
         governmental policies is at the core of our electoral
         process and of the First Amendment freedoms. New
         parties struggling for their place must have the time
         and opportunity to organize in order to meet reasonable
         requirements for ballot position, just as the old
         parties have had in the past.
Id. at 32.
         The principle that the political process should be open
to new parties was vindicated again in Anderson v. Celebrezze,
460 U.S. 780 (1983). In Anderson, a state statute threatened to
prevent independent presidential candidate John Anderson from
appearing on the Ohio ballot. The statute required independent
candidates to file nominating petitions several months before
candidates of political parties were required to file their
documentation. 460 U.S. at 782-83. The Supreme Court found that
the Ohio law effectively prevented late-emerging candidacies
outside the major parties and burdened independent voters in the
gathering of signatures. Id. at 792. The Court noted that
         it is especially difficult for the State to justify a
         restriction that limits political participation by an
         identifiable political group whose members share a
         particular viewpoint . . ..
              A burden that falls unequally on new or small
         political parties or on independent candidates
         impinges, by its very nature, on associational choices
         protected by the First Amendment. It discriminates
         against those candidates and--of particular importance-
         -against those voters whose political preferences lie
         outside the existing political parties.
Id. at 793-94 (emphasis added) (citing Clements v. Fashing, 457
U.S. 957 (1982)). The Court found that the election laws
interfered with the ability of Ohio's independent voters to
"enhance their political effectiveness as a group" and thereby
"threaten[ed] to reduce diversity and competition in the
marketplace of ideas." Id. at 794.
         The core First Amendment principles originally
expounded in Williams and refined in Anderson extend to this
case. By preventing cross-nomination and fusion, Pennsylvania's
election laws burdened the Patriot Party's ability to choose a
candidate and to organize and gain influence in the political
system. The Party was prohibited by law from associating with
Eshenbaugh, despite the fact that Eshenbaugh was the Party's
first choice to be its candidate. It was also prohibited from
forming a consensual political alliance, which would have
eliminated the "wasted" vote problem and allowed the Party to
demonstrate its true electoral strength. Of course, the Party
was still free to organize and to nominate a candidate who had
not been nominated by another political party, but by imposing
its election requirements, the Department undeniably burdened the
Patriot Party's right to associate.
         The burden imposed by the Pennsylvania election laws is
compounded by the fact that Pennsylvania permits the two major
parties to cross-nominate candidates. This additional burden is
an important distinction between this case and Twin Cities. In
Twin Cities, Minnesota imposed a ban on fusion by all parties.
Thus, minor parties suffered only from the disparate impact of
the across-the-board ban. The ban on fusion in this case,
however, applies to minor political parties only. See 25 Pa.
Stat. Ann. § 2870(f). Therefore, the Pennsylvania election laws,
unlike the Minnesota laws, discriminate on their face, as well as
in their impact on major and minor political parties.
         As a result of this facial discrimination against minor
parties, the effects of the law are even more striking, with
significant ramifications for the Patriot Party's right of free
association. When the major parties cross-nominate a candidate,
as they did in the school board election, a minor party candidate
will be required to attract enough votes on the minor party line
alone to defeat a major party candidate who is allowed to
aggregate the votes that he receives on both major party lines.
Although this argument goes more directly to the Patriot Party's
equal protection claim, see infra Part IV, Anderson reminds us
that "a burden that falls unequally on new or small political
parties" also impinges on associational choices protected by the
First Amendment.
         In defense of the statutes, the Department averred at
oral argument that because Pennsylvania's election laws allow
cross-filing by the major political parties in races for three
local offices only, the restriction on cross-nomination by minor
political parties at most imposes a minimal burden on the Patriot
Party's free association rights. Given the relatively minor
status of these offices in the state political structure as a
whole, the Department argued, any burden on the Patriot Party's
First and Fourteenth Amendment right of free association must be
correspondingly minor.
         Based on our reading of Norman, we reject this
argument. In Norman, the Court recognized that minor political
parties must often establish themselves at the local level, and
it characterized as "Draconian" a state court ruling that would
have "foreclose[d] the development of any political party lacking
the resources to run a statewide campaign." Norman, 502 U.S. at
289. Thus, the fact that an election law's effects are limited
in scope is not dispositive. Our inquiry focuses on the
practical and legal barriers that the law erects for minor
political parties seeking to establish themselves as viable
political alternatives to the major parties.
         The Patriot Party seeks to cross-nominate a major party
candidate in a local election so that it can demonstrate the
popularity of its platform in an election undiluted by the major
parties' organizational dominance. Like Illinois's restriction
on using the HWP name, Pennsylvania's ban on fusion may inhibit a
minor party's transition from fledgling political movement to
statewide political organization. See id. Thus, this narrow
application of the prohibition on cross-nomination does not
eliminate the burden that Pennsylvania's election laws place on
the rights of minor parties.
         The two courts of appeals that have addressed this
issue have split on the result. On facts similar to those in
this case, the Eighth Circuit Court of Appeals held that laws
preventing cross-nomination by minor parties severely burden core
First and Fourteenth Amendment rights of free association:
         As in Norman, the burden here is severe because
         Minnesota's laws keep the [minor party] from developing
         consensual political alliances and thus broadening the
         base of public participation in and support for its
         activities. History shows that minor parties have
         played a significant role in the electoral system where
         multiple party nomination is legal, but have no
         meaningful influence where multiple party nomination is
         banned.
Twin Cities, 73 F.3d at 199 (citing Kirschner, supra at 700-04).
As noted above, the burden on the Patriot Party's right of
association in this case is even heavier than the burden imposed
in Twin Cities because unlike Minnesota, Pennsylvania allows
cross-nomination by the major parties. See Anderson, 460 U.S. at
793-94.
         The Seventh Circuit Court of Appeals, however, has held
that a "ban on multiple party nominations does not burden the
associational rights of political parties . . .." Swamp, 950
F.2d at 386. The court argued that "[a]llowing minor parties to
leech onto larger parties for support decreases real competition;
forcing parties to chose [sic] their own candidates promotes
competition." Id. at 385. Judges Ripple, Posner, and
Easterbrook dissented from the Seventh Circuit's refusal to grant
rehearing en banc in Swamp.
         We note, finally, that burdens on minor political
parties translate directly into burdens on individual voters.
The ban on cross-nomination burdens the associational rights of a
voter who supports a minor party platform but recognizes that his
vote will be a political nullity unless he casts it for a major
party candidate. We do not believe that the First Amendment
imposes an affirmative obligation on states to maximize support
for minor political parties. But in this case, a vote cast for a
party outside the current political mainstream is burdened by
more than the minor party's lack of political support. The
Pennsylvania election code has erected an artificial barrier that
prevents a minor party from forming consensual political
alliances, and individual supporters of the minor party
ultimately bear the burden.
         In light of relevant Supreme Court precedent, the
history of fusion, and the practical effect of the challenged
Pennsylvania laws on the Patriot Party's political development,
we find that 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) severely
burden the Patriot Party's First and Fourteenth Amendment rights
of free association. See Twin Cities, 73 F.3d at 198-99.
Pennsylvania, therefore, must demonstrate that these laws are
narrowly tailored to serve a compelling state interest. Norman,
502 U.S. at 289; Eu, 489 U.S. at 222.
     B. Pennsylvania's Interest in Banning Cross-Nomination
         The Supreme Court recognizes that a state has a
"compelling interest in preserving the integrity of its election
process." Eu, 489 U.S. at 231 (citing Rosario v. Rockefeller,
410 U.S. 752, 761 (1973)). "As a practical matter," furthermore,
"there must be a substantial regulation of elections if they are
to be fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic process . . .." Storer v.
Brown, 415 U.S. 724, 730 (1974). To this end, states necessarily
have adopted comprehensive election codes, id., and "the State's
important regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory restrictions." Anderson,
460 U.S. at 788 (footnoted omitted).
         Wolosik and the Department of Elections argue that the
challenged Pennsylvania election laws further four important
state interests: (1) preventing "sore loser" candidacies; (2)
preventing individual candidates from "monopolizing" the ballot
and causing voter confusion; (3) preventing a candidate from
"bleed[ing] off votes of independent voters to bolster his or her
major party endorsement"; and (4) encouraging new candidates to
run as independents. These justifications do not bear scrutiny.
     The district court held that the challenged
Pennsylvania laws are justified as a means to prevent "sore
loser" candidates from carrying an intraparty squabble into the
general election. Patriot Party, slip op. at 9-11 (finding
Patriot Party's argument represents "nothing more than a 'sore
loser' situation"). "Sore losers" are candidates who lose a
major party primary but insist on running on a minor party ticket
in the general election. In Storer v. Brown, the Supreme Court
considered a California election law that denied a place on the
general election ballot to any independent candidate who voted in
the immediately preceding major party primary or registered
affiliation with a political party at any time within one year
prior to the immediately preceding primary. Storer, 415 U.S. at
726. The Court upheld the restriction, noting that it works
against independent candidates who might run against a party's
candidate merely to vindicate their own "short-range political
goals, pique, or personal quarrel." Id. at 735. Thus the
restriction helped to prevent "splintered parties and
unrestrained factionalism" by prohibiting unsuccessful primary
candidates from running as independents in the general election.
Id. at 736.
     The district court held in this case that the
Pennsylvania election laws, like the California election laws
challenged in Storer, serve an important state interest in
preventing sore loser candidacies. We do not agree. The
challenged laws, as applied in this case, did not prevent a "sore
loser" candidacy. Eshenbaugh was nominated as the Democratic
candidate and was going to run in the general election regardless
of the Patriot Party nomination. Eshenbaugh did not run merely
as an embittered loser of the Republican primary; he was the
Democratic Party's candidate for office. An individual is not a
"sore loser" when he has in fact won a major party primary and
runs in the general election as the standard bearer for a major
party. If Eshenbaugh's unsuccessful quest for the Republican
nomination had involved him in a Republican intraparty squabble,
nothing in the Pennsylvania laws would have prevented him from
carrying that dispute into the general election once he secured
the Democratic nomination. Preventing the Patriot Party from
endorsing the major party candidate in this case could do little
to limit factionalism and intraparty disputes in the manner
contemplated by Storer.
     The Pennsylvania election laws prevent sore loser
candidacies insofar as they prevent a candidate who failed to win
either major party primary from running as a minor party
candidate in the general election. The Pennsylvania laws are
overbroad for this purpose, however, and they could easily be
more narrowly tailored to achieve the state's asserted goal of
averting sore loser candidacies. When an individual runs as the
nominee of a major party, he can hardly be accused of making the
general election ballot a "forum for continuing intraparty feuds"
in the manner that concerned California in Storer. 415 U.S. at
735.
     We note also that the sore loser justification could
not support the sweeping ban on cross-nomination between minor
parties that is now in place. If an individual runs for and wins
one minor party nomination only, the sore loser argument does not
explain why that same individual should not be permitted to
accept a cross-nomination from another minor party, or, for that
matter, from a major party. So long as the minor party candidate
did not recently lose a primary or participate actively in
another political party, the logic of Storer would not apply to
the minor party candidate's acceptance of a cross-nomination by
another major or minor party.
     The Department also attempts to justify the contested
election laws as a means to prevent multiple parties from
nominating the same candidate. The Department argues that a
proliferation of minor parties on the ballot would confuse voters
and clog the state's election machinery. Cf. Bullock v. Carter,
405 U.S. 134, 145 (1972) (state has legitimate interest in
avoiding voter confusion); Tashjian, 479 U.S. at 221 (same).
But cf. Tashjian, 479 U.S. at 218 (noting that administrative
economy and convenience do not necessarily justify infringement
of First Amendment rights).
         As a factual matter, there is no evidence in the record
to support the proposition that myriad small parties will "clog"
the ballot if cross-nomination is permitted. In Williams v.
Rhodes, Ohio argued that election laws severely restricting minor
party access to the ballot were necessary to prevent large
numbers of parties from clogging the ballot and confusing voters.
393 U.S. at 33. The Supreme Court observed that
         the experience of many States . . . demonstrates that
         no more than a handful of parties attempts to qualify
         for ballot positions even when a very low number of
         signatures, such as 1% of the electorate, is required.
         It is true that the existence of multitudinous
         fragmentary groups might justify some regulatory
         control but . . . at the present time this danger seems
         to us no more than "theoretically imaginable." No such
         remote danger can justify the immediate and crippling
         impact on the basic constitutional rights involved in
         this case.
Id. (footnotes omitted).
         We believe that this reasoning applies here. The
Department has presented no evidence to indicate that fusion is
likely to produce a crippling proliferation of minor parties.
See Kirschner, supra at 683-85 (describing New York's successful
experience with cross-nomination). Furthermore, Pennsylvania
retains the authority to set reasonable threshold requirements
for parties seeking admission to the ballot. See Illinois
Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184-85
(1979) (citing Lubin v. Panish, 415 U.S. 709, 715 (1974) and
Bullock, 405 U.S. at 145). In short, the Department has offered
no evidence to indicate that the threat of "ballot clogging" in
this case is any more real than the imaginary threat that the
Supreme Court rejected in Williams.
         Although cross-nomination could theoretically lead to a
proliferation of minor parties, it might also simplify the
election ballot and increase the amount of information available
to voters. First, cross-nomination might simplify voter choices
by reducing the absolute number of candidates appearing on the
ballot. As more minor parties choose to cross-nominate major
party candidates rather than field candidates of their own, the
number of different candidates appearing on the ballot might
actually decline. See discussion infra (discussing Department
argument that cross-nomination will reduce number of candidates).
Thus, cross-nomination might actually lead to fewer candidates
and a simpler ballot.
         Second, if a minor party champions specific issues,
that party's nomination of a major party candidate would signal
to voters the minor party's belief that that candidate best
addresses the minor party's specific concerns. Thus, minor
parties may provide more focused scrutiny of a candidate's
position on issues of importance to voters. We are chary of
policies that restrict voter options or information in the name
of simplicity and orderly administration. As the Supreme Court
said in Anderson:
         A state's claim that it is enhancing the ability of its
         citizenry to make wise decisions by restricting the
         flow of information to them must be viewed with some
         skepticism. As we observed in another First Amendment
         context, it is often true "that the best means to that
         end is to open the channels of communication rather
         than to close them."
460 U.S. at 798 (footnote omitted) (quoting Virginia Pharmacy Bd.
v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 779
(1976)); Eu, 489 U.S. at 228; Tashjian, 479 U.S. at 220-222 ("The
State's legitimate interests in preventing voter confusion and
providing for educated and responsible voter decisions in no
respect 'make it necessary to burden [a Party's] rights.'")
(quoting Anderson, 460 U.S. at 221-22). We are not, therefore,
persuaded by the Department's arguments concerning ballot
clogging and voter confusion.
         The other two explanations that the Department proffers
to justify the ban on cross-nomination are even less persuasive.
The Department argues first that the ban on cross-nomination
prevents a candidate from "bleed[ing] off votes of independent
voters to bolster his or her major party endorsement."
Pennsylvania apparently is concerned that cross-nomination would
allow major party candidates to win minor-party votes that would
otherwise have gone to minor party candidates. Cf. Swamp, 950
F.2d at 386 (refusing to allow minor parties to "leech onto"
larger parties for support for fear that practice will decrease
real electoral competition). This is not a question of
candidates "bleeding off" minor-party votes, however; it is a
voluntary transfusion of minor party support to the major party
candidate. Cross-nomination will not increase a major party's
share of minor party votes unless the minor party voluntarily
nominates the major party candidate as its own. It is under the
current system that major party candidates "bleed off" minor
party votes. When cross-nomination is prohibited, individuals
who do not want to "waste" their votes may feel compelled to vote
for a major party candidate--even if they support the minor
party's platform.
         Finally, the Department argues that "Storer and the
Pennsylvania Election Code recognize[] a public policy of
encouraging new candidates to run as independents and
discourage[] a situation where one candidate could accept a major
party nomination and several other minor party nominations
thereby monopolizing the ballot." The Department argues that
cross-nomination could allow a major party candidate to reduce
the support available for competing independent candidates by
accepting several minor party nominations. This hypothetical
reduction in the support available for minor party candidates
would presumably reduce the number of minor party candidates on
the ballot. This argument sets forth no compelling state
interest, and the Department's reliance on Storer is misplaced.
         Storer has little, if anything, to say about the
importance of encouraging new candidates to run as independents.
See Storer, 415 U.S. at 732 (noting states' authority to preventcandidates
from running in general election). The Supreme Court
made clear in Tashjian that Storer was primarily concerned with
protecting political parties from external threats. Tashjian,
479 U.S. at 224. Storer was meant to "prevent the disruption of
the political parties from without, and not, as in this case, to
prevent the parties from taking internal steps affecting their
own process for the selection of candidates." Id. Thus, Storeris simply
inapposite here.
         Furthermore, the Department has not demonstrated that a
minor party's cross-nomination of a willing major party candidate
would threaten to disrupt political parties in any way. A minor
party need not nominate a major party candidate and a major party
candidate need not accept the nomination. See discussion, supranote 4.
The availability of cross-nomination as an option would
not prevent minor parties from nominating and supporting their
own distinct candidates if they chose to do so. Pennsylvania has
not demonstrated how the possibility of a consensual political
alliance would threaten political parties from without or
otherwise implicate the concerns outlined in Storer. As we
explained, supra, this is not a "sore loser" situation.
         The Department's argument is also undermined by the
fact that Pennsylvania permits major parties to cross-nominate
candidates. If the Commonwealth bans cross-nomination by minor
parties to encourage new candidates to run for office, it should
logically prohibit cross-nomination by major parties for the same
reason. An across-the-board ban on cross-nomination would
require the major parties to nominate their own candidates, thus
increasing the number of candidates in the field and the level of
electoral competition. The Commonwealth has offered no reason
for this distinction between major and minor parties.
         We therefore find unpersuasive each interest that the
Department has offered to justify its ban on cross-nomination by
minor parties. The Department bears the burden of demonstrating
that the challenged election laws are narrowly tailored to
protect a compelling state interest. Because a more narrowly
tailored law would prevent sore-loser candidacies, this case
falls outside the ambit of Storer. The Department's other
asserted interests are either unsupported by the record or
insufficient to justify an outright ban on cross-nomination by
minor parties. State regulation of cross-nomination might be
appropriate in some circumstances, but the Department has not
carried its burden in this case. Thus, we hold that
Pennsylvania's prohibition of cross-nomination by minor political
parties violates the Patriot Party's right of free association.
               IV. Equal Protection of the Laws
         The Pennsylvania election code facially discriminates
between major and minor parties. The challenged statutes, 25 Pa.
Stat. Ann. §§ 2936(e) and 2911(e)(5), operate to prevent cross-
nomination by minor parties, while 25 Pa. Stat. Ann. § 2870(f)
allows the major parties to cross-nominate candidates for school
director and other local offices. The Patriot Party alleges that
this disparate treatment also violates the Party's Fourteenth
Amendment right to equal protection of the laws because it
violates a non-discrimination principle enunciated by the Supreme
Court in Williams v. Rhodes. See 393 U.S. at 32. Because
neither Twin Cities nor Swamp involved a ban on cross-nomination
that facially discriminated against minor parties, we examine for
the first time in a fusion case the issues presented by the
Patriot Party's equal protection claim.
         The district court held that Pennsylvania's election
laws do not violate the Patriot Party's right to equal
protection. Patriot Party, slip op. at 11. The court, applying
the same balancing test that it applied to the free association
claim, concluded that the "defendants' legitimate interest in
regulating [the] ballot and election process justifies the
limited restraints placed upon plaintiff by the challenged
provisions of the Election Code." Id. Appellees assert that the
laws should be subject to rational basis review because they do
not create an "invidious, arbitrary, or irrational"
classification and do not apply to a suspect class. They argue
that because the classification is rationally related to a
legitimate government interest in regulating its ballot, it does
not violate the Fourteenth Amendment.
         The Supreme Court's major precedent concerning the
equal protection rights of political parties is Williams v.
Rhodes, 393 U.S. 33 (1968). In Williams, Ohio election laws made
it virtually impossible for new or small political parties to be
placed on the state ballot for the selection of presidential and
vice presidential candidates. Id. at 24. Thus, the challenged
laws violated the constitutional guarantee of equal protection
because they "[gave] the two old, established parties a decided
advantage over any new parties struggling for existence and . . .
place[d] substantially unequal burdens on both the right to vote
and the right to associate." Id.
         The Court characterized the nature of the equal
protection burden imposed by the Ohio laws from the perspective
of both voters and minor political parties. First, the Court
noted that the election laws placed an unequal burden on voters
who supported new or small political parties because those voters
could not cast an effective vote for their party of choice. Id.at 31.
Second, the election laws placed an unequal burden on
minor political parties themselves because they were excluded
from the ballot and thereby denied an equal opportunity to win
votes. Id. The State election laws burdened protected
constitutional rights because they operated to "stifle the growth
of . . . new parties working to increase their strength from year
to year." Id. at 32.
         Against these burdens, the Court weighed Ohio's
arguments in favor of its election laws. The State argued that
its laws were necessary to promote the stability and integrity of
the political system and for administrative efficiency. The
Court examined each of the State's asserted interests in turn,
and concluded that although states have broad powers to regulate
voting, Ohio's laws constituted "an invidious discrimination" in
violation of the Equal Protection Clause. Id. at 31-34.
         From Williams, we can extrapolate the first principles
and basic structure of our equal protection analysis. It is
clear that no State may pass a law regulating elections that
violates the Fourteenth Amendment's guarantee of equal protection
of the laws. Williams, 393 U.S. at 29. Of course, "the Equal
Protection Clause does not make every minor difference in the
application of laws to different groups a violation of our
Constitution," id. at 30, but we will examine election laws to
ensure that the distinctions or classifications that they create
are not "invidious" under our precedent. Id.; Patriot Party of
Pennsylvania v. Mitchell, 826 F. Supp. 926 (E.D.Pa. 1993) (citing
Clements, 457 U.S. at 967), aff'd, 9 F.3d 1540 (3d Cir. 1993).
         In order to determine whether election laws violate the
Equal Protection Clause, we must measure the totality of the
burden that the laws place on the voting and associational rights
of political parties and individual voters against the
justifications that the State offers to support the law.
Williams, 393 U.S. at 34. As the Supreme Court stated in
Williams: "In determining whether or not a state law violates the
Equal Protection Clause, we must consider the facts and
circumstances behind the law, the interests which the State
claims to be protecting, and the interests of those who are
disadvantaged by the classification." Id. at 30 (footnote
omitted). Thus, our analysis of the Patriot Party's equal
protection claim is similar in many respects to the balancing
test that we applied to its free association claim.
         It is undisputed that the Pennsylvania election laws
treat major and minor parties differently. Major parties that
file nominating petitions and hold primaries are permitted to
cross-nominate each other's candidates for school board, see 25
Pa. Stat. Ann. § 2870(f), while minor parties may not cross-
nominate any candidates, see 25 Pa. Stat. Ann. §§ 2936(e) and
2911(e)(5).
         The restriction in Williams, which prevented minor
parties from appearing on the ballot, was undoubtedly a more
severe burden on the rights of minor parties than the restriction
imposed by the state election laws in this case. The
Pennsylvania laws do not prevent minor parties from nominating
most individuals or from placing their candidate on the ballot;
they merely prevent minor parties from nominating the few
candidates already nominated by other parties. But seediscussion supra at
__ (discussing Norman v. Reed) [Typescript at
14-15].
         Nevertheless, we believe that Pennsylvania's decision
to ban cross-nomination by minor parties and to allow cross-
nomination by major parties constitutes the type of "invidious
discrimination" prohibited by the Fourteenth Amendment.
Pennsylvania's decision to ban some consensual political
alliances and not others burdens individuals who support a minor
party's platform because it forces them to choose among three
unsatisfactory alternatives: "wasting" a vote on a minor party
candidate with little chance of winning, voting for a second-
choice major party candidate, and not voting at all. This burden
would be assuaged if minor political parties were accorded an
equal right to cross-nominate willing major party candidates.
         The ban on cross-nomination by minor political parties
also infringes on the the equal protection rights of political
parties themselves. The challenged election laws may prohibit a
minor party from nominating its best candidate and from forming a
critical type of consensual political alliance that would help it
to build support in the community. Thus, the challenged laws
help to entrench the decided organizational advantage that the
major parties hold over new parties struggling for existence.
         The ill effects of these laws are further magnified
when the major parties elect to cross-nominate the same
candidate, as they did in the school board election at issue.
When the major parties cross-nominate a candidate, a minor party
candidate must fight an uphill election battle against the
combined strength of two well-organized and established major
parties without even the prospect of forming its own ballot
alliances. If a vote is "wasted" when it is cast for a minor
party candidate running against two major party candidates, it is
a fortiori wasted when the major parties unite behind one
candidate. Such an arrangement is a significant burden on a
minor party's right to equal protection of the laws.
         Moreover, Pennsylvania imposes these unequal burdens on
the right to vote and the right to associate without protecting
any significant countervailing state interest. As already noted,
the ban on cross-nomination by minor parties is overly broad if
it is intended merely to prevent sore loser candidacies. The
other interests asserted by the Department on behalf of the
Commonwealth simply do not bear scrutiny. See discussion supraat ___-___
[Typescript at 26-36]. Furthermore, many of the
Department's arguments concerning ballot transparency and voter
choice are undermined by the fact that the Commonwealth allows
cross-nomination by the major political parties.
         Pennsylvania's election laws facially discriminate
against minor political parties in a way that diminishes their
ability to organize and to compete effectively in the political
process. The Department offers no compelling justification for
the Commonwealth's facially discriminatory laws. We hold,
therefore, that these facially discriminatory laws create an
"invidious classification" that violates the Equal Protection
Clause of the Fourteenth Amendment.
                          V. Conclusion
         The challenged election laws burden the Patriot Party's
right of free association by preventing the Party from nominating
the candidate of its choice. They also prevent the Party from
fusing its votes with those of the major parties in order to
maximize its appeal to voters and to build its political
organization. Appellees assert no compelling state interest to
justify the election laws as applied in this case, and
Pennsylvania could easily achieve its asserted goal of preventing
"sore-loser" candidacies with a more narrowly tailored law.
Pennsylvania's ban on cross-nomination by minor political parties
therefore violates the Patriot Party's First and Fourteenth
Amendment right of free association.
         The laws also violate the Fourteenth Amendment's
guarantee of equal protection of the laws. They discriminate
against minor parties and the voters who wish to support them
without supporting a compelling or even a significant state
interest.
         We therefore hold that the challenged Pennsylvania
election laws, as applied in this case, constitute an
unconstitutional burden on the Patriot Party's First and
Fourteenth Amendment rights to free association and equal
protection. We will therefore reverse the judgment of the
district court, enter judgment for the Allegheny County Patriot
Party, and remand the case to the district court for further
proceedings consistent with this opinion.
Patriot Party of Allegheny County v. Allegheny County Department
of Elections, No. 95-3385



GREENBERG, Circuit Judge, dissenting.
         I respectfully dissent. As the majority indicates,
this appeal involves a challenge to Pa. Stat. Ann. tit. 25, §§
2936(e) and 2911(e)(5) (1994) "as applied in this case to prevent
the [Patriot] Party from nominating [Michael] Eshenbaugh" as a
candidate for school director in the North Allegheny School
District. Typescript at 5. Eshenbaugh cross-filed for the
office in both the Democratic and Republican primaries. He won
the first but lost the second. Thus, at the time that the
Patriot Party as a minor party attempted to nominate Eshenbaugh
as its candidate, he already was the Democratic candidate.
Everyone agrees that the nomination was thus unlawful under
Pennsylvania law as written.
         The majority invalidates the statutory bars to
Eshenbaugh's nomination on First and Fourteenth Amendment
grounds. It finds that the statutes "severely burden the Patriot
Party's First and Fourteenth Amendment rights of free
association." Typescript at 24. It also finds that the statutes
"facially discriminate[] between major and minor parties" in
violation of the Equal Protection Clause of the Fourteenth
Amendment, because they preclude a minor party from participating
in the cross-nomination of a candidate while allowing major
parties to do so. Typescript at 34.
         The majority does not suggest that these First and
Fourteenth Amendment problems require the invalidation of the
statutes at issue without further analysis. Quite to the
contrary, it balances the minor party's constitutional rights
with the state's interests in precluding the cross-party
candidacy in question here. It then finds that the state's
interests do not justify the restrictions, and it thus "hold[s]
that the challenged Pennsylvania election laws, as applied in
this case, constitute an unconstitutional burden on the Patriot
Party's First and Fourteenth Amendment rights to free association
and equal protection." Typescript at 40.
         I believe that the methodology used by the majority in
its well-drafted and thoughtful opinion is correct. I dissent,
however, because I believe that, as applied in this case, the
statutes serve a compelling state interest. While the majority
expresses concern that the Patriot Party's rights be protected,
it acknowledges that it must consider countervailing interests.
Under the Pennsylvania scheme, a voter in a primary election in
which cross-filing is permitted, will know whether a candidate
has cross-filed or at least that information will be available to
the voter. Thus, the voters in the primary knew or could have
known that Eshenbaugh was seeking both the Democratic and
Republican nominations. That information could be very important
to a particular voter, as many voters are partisan advocates of
one or the other major political parties and only will vote for
candidates from that party. Of course, voters have every right
to that partisan approach. A voter in a primary may refuse to
vote for a candidate who has cross-filed with another major
party, choosing instead to vote for a "pure" Democrat or
Republican.
         To the partisan political voter, it might come as a
shock to discover that he or she voted for a closet advocate of a
minor political party. In short, while some people see merit in
fusion tickets, others may be put off by them. I, of course,
express no opinion on this political point. I, however, do
express the opinion that the state has a compelling interest in
ensuring that voters in primary elections not be deceived in the
electoral process. In this case, a voter in the primary election
in May 1993 for school director knew or could have known that
Eshenbaugh was seeking to run as a Democrat and as a Republican
and the voter could take or leave Eshenbaugh on that basis. If
the statutes at issue in this case had been invalidated before
the primary, what the voter could not also have known was that a
vote for Eshenbaugh also would be a vote for the candidate of the
Patriot Party. The majority sees merit in "increas[ing] the
amount of information available to voters," typescript at 29, and
so do I. The problem with the majority's approach is that it
deprives the voter of the crucial information of knowing the
identity of the political parties with which a candidate has an
affinity.
         The point I raise should not be shrugged off. Today we
have single-issue political parties. A Democrat or Republican
voter might be opposed completely to the ideology of a minor
party but yet discover after the primary that his or her vote has
contributed to the fortunes of the minor party by nominating its
candidate to run as a Democrat or Republican as well. The
Pennsylvania statutes preclude such stealth situations. The
majority demonstrates its concern that a minor party be able to
"build its political organization." Typescript at 3, 14. What
it overlooks is that a partisan major party voter may not want
his or her vote used to help the minor party in that effort.
         I recognize that it reasonably could be argued that
Pennsylvania could avoid the problem I identify by requiring
minor parties to select their candidates prior to the primary
election. Of course, such a condition would restrict the minor
party's flexibility and would have problems of its own. In any
event, the possibility that a minor party could designate its
candidate before the major party primary election does not affect
my analysis. Rather, I take this case as it has been presented
by the parties to this appeal and on the basis on which the
majority decides it, which is whether the Pennsylvania statutes
are unconstitutional "as applied in this case." Thus, I do not
address the possibility that the Pennsylvania statutes might be
unconstitutional if applied in a situation in which the minor
party files its nominating papers before the primary for, even if
they would be unconstitutional in that circumstance, they validly
can be applied here. See Commonwealth v. The First School, 370
A.2d 702, 705-07 (Pa. 1977). Here the Patriot Party nominated
Eshenbaugh after the primary, and he accepted its nomination at
that time, and both the district court and the majority
adjudicated the case on that basis and so do I.
         I make one final point. I infer from the majority
opinion that it believes that the result it reaches is dependent
upon the circumstance that Pennsylvania permits major party
cross-filing in school director elections. Certainly my
inference is correct at least with respect to the majority's
equal protection holding, as the majority identifies the
disparate treatment of a minor as opposed to a major party in the
statutory scheme that permits candidates to cross-file in major
party primaries but not to file as both a major and minor party
candidate.
         Nevertheless, I do not see how the application of the
free association rights the majority identifies can be cabined to
elections in which the state permits some cross-filing. To the
contrary, it seems logical to me that the majority's approach
inevitably leads to the conclusion that Pennsylvania (and the
other jurisdictions in this circuit) must permit cross-filing in
all elections, so that following any primary election for any
office, a minor party may nominate any willing major party
candidate to be the minor party's candidate in that election.
After all, why are the associational rights of the minor parties
in any way dependent on the circumstance that a candidate could
cross-file in the Democratic and Republican primaries?
         For the foregoing reasons I respectfully dissent. In
my view, the Pennsylvania statutes as applied in this case are
constitutional. Furthermore, I believe that the majority opinion
carries implications which could bring about fundamental changes
in the election processes in Pennsylvania and the other
jurisdictions in this circuit by judicial decision. We ought not
to lay the foundation for such a development. If such changes
are to come, let the legislatures bring them about.
