                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-1999

Patriot Party Alghny v. Alghny Cty Dept
Precedential or Non-Precedential:

Docket 96-3677,97-3359




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Filed March 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-3677 and 97-3359

REFORM PARTY OF ALLEGHENY COUNTY

v.

ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS;
MARK WOLOSIK, Director of the Allegheny County
Department of Elections,

       Appellants.

On Appeal from the United States District Court
for the Western District of Pennsylvania
(Civil Action No. 93-cv-01884 and 97-3359)
[District Judge: Honorable William L. Standish

Argued: December 12, 1997

Before: NYGAARD, ALITO, Circuit Judges
and DEBEVOISE, District Judge1

Reargued January 13, 1999

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

(Opinion filed: March 30, 1999)



_________________________________________________________________

1. The Honorable Dickinson R. Debevoise, Senior United States District
Judge for the District of New Jersey, sitting by designation.
       Kerry Fraas
       County Solicitor
       Allan J. Opsitnick (Argued)
       Assistant County Solicitor
       Michael McAuliffe Miller
       Assistant County Solicitor
       Allegheny County Law Dept.
       300 Ft. Pitt Commons
       445 Ft. Pitt Blvd.
       Pittsburgh, PA 15219

        Attorneys for Appellants

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

       Sarah E. Siskind, Esquire
       Miner, Barnhill & Galland
       44 East Mifflin Street, Suite 803
       Madison, WI 53703

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

        Attorneys for Appellee

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, 117 S. Ct. 1364 (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

                                 2
Patriot Party's2 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. SS 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
_________________________________________________________________

2. By Order dated January 14, 1999, this court granted plaintiff 's
motion to amend the caption to change the name of Patriot Party of
Allegheny County to Reform Party of Allegheny County. In this opinion,
we will continue to use the former appellation.

3. "Fusion" is "the nomination by more than one political party of the
same candidate for the same office in the same general election."
Timmons, 117 S. Ct. at 1367 n.1 (citing Twin Cities Area New Party v.
McKenna, 73 F.3d 196, 197-98 (8th Cir. 1996)).

4. The five offices are "judge of a court of common pleas, the
Philadelphia
Municipal Court or the Traffic Court of Philadelphia, . . . school
director
in a district where that office is elective, or . . . justice of the
peace." 25
Pa. Stat. Ann. S 2870(f).

                               3
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.
_________________________________________________________________

5. The court in Patriot Party I explained the structure of the challenged
statutes:

        As a minor political party, the Patriot Party does not file
       "nomination petitions" for the primary elections, as do the major
       political parties. Instead, the Patriot Party, like other minor
political
       parties, must file "nomination papers" containing the number of
       signatures specified by Pennsylvania law. 25 Pa. Stat. Ann. S 2872.

        Section 2936(e) of the Pennsylvania Code prohibits the filing of a
       nomination paper "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. . . ." Furthermore, S 2911(e)(5) requires that

       [t]here shall be appended to each nomination paper ... an affidavit
       of each candidate nominated therein, stating-- . .. (5) that his
       name has not been presented as a candidate by nomination
       petitions for any public office to be voted for at the ensuing
       primary election, nor has he been nominated by any other
       nomination papers filed for any such office. . ..

        The above sections of the election code apply only to the
       "nomination papers" filed by minor parties and not to "nomination
       petitions" filed by the major parties participating in the
primaries.
       Thus, while S 2870(f) of the Pennsylvania election code expressly
       allows the major parties to cross-nominate candidates for school
       director, SS 2936(e) and 2911(e)(5) prevent such cross-nomination
by
       minor political parties.

Patriot Party I, 95 F.3d at 256 n.1.
4
In February 1994, the Patriot Party filed suit for
declaratory and injunctive relief under 42 U.S.C.S 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. S 1983, seeking injunctive and declaratory relief,

                               5
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 Partyfiled 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.
SS 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 (1989), and Anderson v.

                                  6
Celebrezze, 460 U.S. 780, 789 (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 did not meet this test. Id. Specifically, the
Department had argued that four important state interests
were served: "(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." Id.
The panel examined each of these interests and found that
they did not bear scrutiny. Id. at 264-68.

                                7
The panel also held that the challenged statutes violate
minor parties' right to equal protection of the laws. The
panel observed that the statutes facially discriminated
between major and minor parties, and that in this respect
the case was distinguishable from the Minnesota statutes
the Eighth Circuit Court of Appeals had considered in
Timmons. Id. at 268. Relying on the principles and
structure of the equal protection analysis in the Supreme
Court's decision in Williams v. Rhodes, 393 U.S. 23 (1968),
the panel examined whether the election laws created
invidious distinctions or classifications. Patriot Party I, 95
F.2d at 269 (citing Williams, 393 U.S. at 30). The panel
delineated its task as follows: "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." Id. (citing Williams, 393 U.S. at 34). Applying this
analysis, the panel concluded 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." Id. The panel noted that, by treating minor
and major parties differently, the statutes burdened both
minor parties and the voters that support them. Id. The
panel reiterated its earlier conclusion that, in the face of
these unequal burdens, the Department had offered no
compelling justifications. Id. ("Pennsylvania imposes these
unequal burdens on the right to vote and the right to
associate without protecting any significant countervailing
state interest.").

In Timmons, the Supreme Court upheld Minnesota laws
that imposed a general ban on fusion candidacies. The
Court applied the same test that the panel had applied in
Patriot Party I but concluded that the Minnesota laws did
not violate the right to freedom of association. Assessing
the burdens placed on minor political parties' associational
rights, the Court rejected the argument that a severe
burden was imposed by the fact that a party might be
prevented from nominating a particular individual as its
standard bearer. Timmons, 117 S. Ct. at 1370 ("That a
particular individual may not appear on the ballot as a
particular party's candidate does not severely burden that

                               8
party's association rights."). The Court then rejected an
argument that the fusion ban imposed a severe burden on
minor parties' attempts to organize or develop political
alliances. Id. at 1371 ("Minnesota has not directly
precluded minor political parties from developing and
organizing. . . . Nor has Minnesota excluded a particular
group of citizens, or a political party, from participation in
the election process."). In sum, the Court concluded the
burdens on associational rights imposed by the fusion ban
"--though not trivial--are not severe." Id. at 1372.

Having determined that the burdens were not severe, the
Court proceeded to conduct a "less exacting review," in
which "a State's `important regulatory interests' will usually
be enough to justify `reasonable, nondiscriminatory
restrictions.' " Id. at 1370 (quoting Burdick v. Takushi, 504
U.S. 428, 434 (1992) (internal quote marks omitted)). The
Court reasoned that "the State's asserted regulatory
interests need only be `sufficiently weighty to justify the
limitation' imposed on the [minor party's] rights." Id. at
1372 (quoting Norman v. Reed, 502 U.S. 279, 288-89
(1992)). Although the Court declined to consider
Minnesota's alleged interest in "avoiding voter confusion,"
id. at 1375 n.13, the Court concluded that the burdens
imposed by the Minnesota's fusion ban on minor parties'
associational rights were "justified by `correspondingly
weighty' valid state interests in ballot integrity and political
stability." Id. at 1375.

III. The Rule 60(b)(6) Motion

As a preliminary matter, we must determine if the
District Court properly denied the Department's Fed. R.
Civ. P. 60(b)(6) motion for relief from judgment filed in
Eshenbaugh's case.6 The panel in Patriot Party II affirmed
the District Court's denial of the motion. We agree.

We review a district court's denial of a Rule 60(b) motion
for abuse of discretion. Central W. Rental Co. v. Horizon
_________________________________________________________________

6. The Department moved for relief from judgment under Rule 60(b)(4)
and (6), but on appeal, they have abandoned the former, opting only for
relief under Rule 60(b)(6).

                                9
Leasing, 967 F.2d 832, 836 (3d Cir. 1992). An abuse of
discretion may be found when "the district court's decision
rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact."
International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91,
95 (3d Cir. 1987).

Relief under Rule 60(b)(6) "is available only in cases
evidencing extraordinary circumstances." Martinez-McBean
v. Government of Virgin Islands, 562 F.2d 908, 911 (3d Cir.
1977) (quoting Stradley v. Cortez, 518 F.2d 488, 493 (3d
Cir. 1975)). Furthermore, "[i]ntervening developments in the
law by themselves rarely constitute the extraordinary
circumstances required for relief under Rule 60(b)(6)."
Agostini v. Felton, 117 S. Ct. 1997, 2018 (1997). As we will
discuss below, the Supreme Court's decision in Timmons
did not overrule the holding of the Patriot Party I panel that
the Pennsylvania statutes at issue violate the Equal
Protection Clause. Therefore, as the panel in Patriot Party II
recognized, no extraordinary circumstances exist that
would justify granting the Department's motion under Rule
60(b)(6).

Furthermore, to the extent that the Department is
attempting to use its Rule 60(b)(6) motion as a means of
seeking review of our decision in Patriot Party I, a Rule
60(b)(6) motion may not be used as a substitute for an
appeal. Martinez-McBean, 562 F.2d at 911. The Department
chose not to petition for certiorari in the Eshenbaugh case
even though it was on notice that the Timmons case was
then pending before the Supreme Court. Indeed, a petition
for certiorari might have obviated the need for this en banc
review. The Department cannot attempt to second-guess
that decision now with its Rule 60(b)(6) motion.

For the above stated reasons, we find no abuse of
discretion in the District Court's denial of the Rule 60(b)
motion. The District Court properly concluded that the
outcome in Eshenbaugh's case (No. 97-3359) could not be
reopened for further consideration.

IV. The Equal Protection Claim

We turn now to the Patriot Party's motion for summary
judgment in Childress's case (No. 96-3677), the granting of

                                 10
which was affirmed by the panel in Patriot Party II. The
granting of summary judgment by a district court is subject
to plenary review. American Med. Imaging Corp. v. St. Paul
Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir. 1991).

The primary issue before us is whether the Patriot Party's
equal protection claim is still viable after Timmons.7 Nothing
in the Timmons opinion itself weakens the equal protection
analysis of Patriot Party I, because no equal protection
claim was asserted or considered by the Court in Timmons.
The statutory scheme in Timmons differs from the
Pennsylvania scheme in a manner crucial for the equal
protection analysis. Timmons involved an across-the-board
ban on fusion by both major and minor parties. In contrast,
the Pennsylvania statutes involve a ban on cross-
nomination that facially discriminates against minor parties
by allowing major parties, but not minor parties, to cross-
nominate in certain circumstances. The Supreme Court in
Timmons did not hold that states can treat minor parties in
a discriminatory way. Indeed, in discussing the test for
deciding whether state election laws violate First and
_________________________________________________________________

7. We have chosen not to address whether the Supreme Court's opinion
in Timmons eviscerates the associational rights analysis in Patriot Party
I. In our current opinion, we hold only that 25 Pa. Stat. Ann. SS 2936(e)
and 2911(e)(5) are unconstitutional because they violate a minor party's
right to equal protection of the laws. Some degree of the associational
rights analysis in Patriot Party I may remain viable because the
Pennsylvania laws, in contrast to the Minnesota laws in Timmons,
facially discriminate between major and minor parties, thus exacerbating
the burdens imposed on minor parties. Because, however, our equal
protection analysis is directed at the impact of this same discriminatory
language, we do not go on to examine it as it applies to the right to
freedom of association.

Nevertheless, to the extent that it can be suggested that the
associational rights analysis in Patriot Party I may have state-wide or
circuit-wide implications for election processes, see Patriot Party I, 95
F.3d at 272 (Greenberg, J., dissenting) (arguing that the majority's
approach in Patriot Party I "leads to the conclusion that Pennsylvania
(and the other jurisdictions in this circuit) must permit cross-filing in
all
elections"), we note that the Timmons decision, in ruling that a generally
applicable anti-fusion law does not unconstitutionally infringe on
associational rights, appears indeed to foreclose such a suggestion.

                               11
Fourteenth Amendment associational rights, the Court
wrote:

       Regulations imposing severe burdens on plaintiffs'
       rights must be narrowly tailored and advance a
       compelling state interest. Lesser burdens, however,
       trigger less exacting review, and a State's " `important
       regulatory interests' " will usually be enough to justify
       " `reasonable, nondiscriminatory restrictions.' "

Timmons, 117 S. Ct. at 1370 (emphasis added). Thus, even
though the Court held that the burdens posed by fusion
bans on parties and voters are not severe, the Court still
maintained a requirement that the restrictions be
reasonable and nondiscriminatory. Because the
Pennsylvania law permits fusion by major parties, but
prohibits fusion by minor parties, it is, on its face,
discriminatory.8

Moreover, the Court in Timmons did not overrule in any
way its decision in Williams v. Rhodes, 393 U.S. 23 (1968),
on which the Patriot Party I panel relied in its equal
protection analysis. Rather, the Court cited Williams
favorably. See Timmons, 117 S. Ct. at 1374 (citing Williams
for the proposition that the State interest in the stability of
its political system "does not permit a State to completely
insulate the two-party system from minor parties' or
independent candidates' competition and influence").

In Williams, the Supreme Court stated at the outset:

       It is true that this Court has firmly established the
       principle that the Equal Protection Clause does not
       make every minor difference in the application of laws
       to different groups a violation of our Constitution. But
_________________________________________________________________

8. An argument could be made that the Court in Timmons did in fact give
states permission to treat minor parties differently. For example, the
Court wrote that "the States' interest permits them to enact reasonable
regulations that may, in practice, favor the traditional two party
system."
Timmons, 117 S. Ct. at 1374. This argument is disposed of, however, by
the recognition that there is a difference between regulations that "in
practice" favor a two party system and those that on their face
discriminate between major and minor parties. The Pennsylvania
statutes discriminate on their face between major and minor parties.

                                12
       we have also held many times that `invidious'
       distinctions cannot be enacted without a violation of
       the Equal Protection Clause.

Williams, 393 U.S. at 30. The Court went on to define the
applicable test: "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.9

As the panel in Patriot Party I explained,"[i]n 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." Patriot Party I, 95 F.3d at 268 (citing Williams,
393 U.S. 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. (quoting Williams, 393
U.S. at 24). The panel in Patriot Party I acknowledged that
"[t]he 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."
Id. at 269. Nonetheless, the panel held 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." Id. We reaffirm this holding for
the reasons set forth below.
_________________________________________________________________

9. In Patriot Party I, after reciting the Williams test, the panel wrote
that
"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." Patriot Party I, 95 F.3d at 269. From this, the
Department tries to argue that if the free association claim is vitiated
by
Timmons, then a fortiori the equal protection claim is also vitiated. This
argument ignores, however, the fact that the equal protection analysis is
sufficiently different from the free association analysis so as to stand
on
its own.

                               13
The first question to be addressed in an equal protection
challenge is what level of scrutiny we should apply in
reviewing the challenged laws. In order to make this
decision, we must assess the impact of the laws on the
rights at stake. See, e.g., Illinois State Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173, 184 (1979) (holding
that "[r]estrictions on access to the ballot burden two
distinct and fundamental rights" and that "a State must
establish that its classification is necessary to serve a
compelling interest"); Bullock v. Carter, 405 U.S. 134, 142-
44 (1972) (concluding that a "Texas filing-fee scheme has a
real and appreciable impact on the exercise of the
franchise" and that the laws must therefore be " `closely
scrutinized' and found reasonably necessary to the
accomplishment of legitimate state objectives in order to
pass constitutional muster"). In Williams, for example, the
Court began its analysis by identifying the rights burdened
by the challenged state laws -- "the right of individuals to
associate for the advancement of political beliefs, and the
right of qualified voters, regardless of their political
persuasion, to cast their votes effectively." Williams, 393
U.S. at 30. The Court reasoned that the laws in question
placed "substantially unequal burdens on both the right to
vote and the right to associate." Id. at 31. The Court stated:
"In determining whether the State has power to place such
unequal burdens on minority groups where rights of this
kind are at stake, the decisions of this Court have
consistently held that `only a compelling state interest in
the regulation of a subject within the State's constitutional
power to regulate can justify limiting First Amendment
freedoms.' " Id. (citing NAACP v. Button, 371 U.S. 415, 438
(1963)).

In the instant case, therefore, we must identify the
burdens imposed by the Pennsylvania laws. In Patriot Party
I, the panel, in its equal protection analysis, identified the
following burdens: First, the ban on minor party cross-
nomination "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." Patriot Party I, 95 F.3d at 269. Second, the ban

                               14
burdens the political parties themselves because they "may
prohibit a minor party from nominating its best candidate
and from forming a critical type of consensual political
alliance that would help it 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." Id.

The Court in Timmons addressed similar burdens (in its
associational rights analysis) in the context of a general ban
on fusion and concluded that the burdens, although not
trivial, were not severe. Timmons, 117 S. Ct. at 1370-72.
The Court then proceeded to apply not strict scrutiny, but
an intermediate level of scrutiny, in which "the State's
asserted regulatory interests need only be `sufficiently
weighty to justify the limitation' imposed on the[minor
party's] rights." Id. at 1372 (citing Norman, 502 U.S. at 288-
89). Under this standard, the Court indicated that it would
not "require elaborate, empirical verifications of the
weightiness of the State's asserted justifications." Id. (citing
Munro v. Socialist Workers Party, 479 U.S. 189, 195-96
(1986)).

If we assume, and we believe we must, that the above
stated burdens require the same level of scrutiny in an
equal protection analysis that they do in an associational
rights analysis, then we must now apply an intermediate
level of scrutiny. In doing so, we will recognize, however,
that because of the discriminatory aspects of the
Pennsylvania statutes, the burdens imposed by them on
voters and on political parties are more onerous than those
involved in Timmons. In Timmons, the asserted burdens
existed in the context of an across-the-board ban on fusion.
Timmons, 117 S. Ct. at 1370 (noting that the Minnesota
ban, "which applies to major and minor parties alike,
simply precludes one party's candidate from appearing on
the ballot, as that party's candidate, if already nominated
by another party"). In the instant case, the burden is
exacerbated because Pennsylvania has allowed the major
parties to cross-nominate but has disallowed minor parties
from doing the same. As the panel in Patriot Party I wrote:

       The ill effects of these laws are further magnified when
       the major parties elect to cross-nominate the same

                               15
       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 ballots
       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.

Patriot Party I, 95 F.3d at 269.

Using an intermediate level of scrutiny, our next step is
to weigh, against the burdens imposed, any plausible
justification the State has advanced for imposing unequal
burdens on major and minor parties. Cf. Romer v. Evans,
517 U.S. 620, 632 (1996) ("[E]ven in the ordinary equal
protection case calling for the most deferential of standards,
we insist on knowing the relation between the classification
adopted and the object to be attained."). Wefind no such
justification. Although the Department has identified
justifications, such as preventing ballot manipulation and
preserving political stability, that were recognized in
Timmons to be legitimate state interests, see Timmons, 117
S.Ct. at 1373-74, the Department has not demonstrated
how these interests are served by the unequal burden
imposed here. Indeed, the Department acknowledges in its
brief that it has no idea why the Pennsylvania legislature
chose to allow major party cross-nomination in thefive
local elections at issue here, but denied the same
opportunity to minor parties. Department Br. at 17. 10
_________________________________________________________________

10. The Commonwealth of Pennsylvania has also declined to assert any
interests to justify this discrimination. We note that, in both
Eshenbaugh's and Childress's case, the District Court served the
requisite notice on the Attorney General of Pennsylvania, advising that
the cases challenged the state laws in question, thus giving the
Commonwealth an opportunity to intervene to defend them. See 28
U.S.C. S 2403(b). In addition, the Attorney General was invited by this
Court to submit an amicus brief to supplement the Department's defense
of the statutory scheme in this appeal. In each instance, including this
appeal, the Attorney General chose not to intervene or defend the
constitutionality of the challenged laws.

                               16
As the panel in Patriot Party I explained, "Pennsylvania
imposes these unequal burdens on the right to vote and the
right to associate without protecting any significant
countervailing state interest." Patriot Party I, 95 F.3d at
269. In the context of the equal protection claim,
Pennsylvania has not asserted any regulatory interests that
are "sufficiently weighty" to justify the discriminatory
treatment of major and minor parties.

When we consider constitutional challenges to specific
provisions of a State's election laws, we cannot speculate
about possible justifications for those provisions. The court
"must identify and evaluate the precise interests put
forward by the State as justifications for the burden
imposed by its rule." Anderson, 460 U.S. at 789; cf.
Edenfield v. Fane, 507 U.S. 761, 768 (1993) (observing that,
unlike rational basis review, the intermediate standard of
review applicable in commercial speech cases "does not
permit [the Court] to supplant the precise interests put
forward by the State with other suppositions").
Furthermore, our analysis is confined to the four state
interests asserted by the Department to the District Court.11
_________________________________________________________________

11. At oral argument, the Department asserted, for the first time, that
allowing major party cross-nomination for the five local offices served a
state interest in making those offices nonpartisan or less partisan. The
Department's failure to raise this argument in its appeal briefs, as well
as before the District Court, would alone be fatal for the argument. "An
issue is waived unless a party raises it in its opening brief, and for
those
purposes `a passing reference to an issue . . . will not suffice to bring
that issue before this court.' " Laborers' Int'l Union v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994) (quoting Simmons v. City of
Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (plurality opinion)
(Becker, J.)). Even if we were to consider this state interest, however,
it
does not persuade us, because the Department fails to explain why the
interest requires or allows for discrimination against minor parties.

In addition, the Department, following the dissent in Patriot Party I,
now tries to assert a state interest in ensuring that partisan voters who
wish to vote for a "pure" Democrat or Republican know at the time of the
major party primary whether the major party candidate will accept a
minor party cross-nomination. The Department, however, in arguing this
case before the Patriot Party I panel, "never asserted that the
Commonwealth had any such interest in protecting partisan voters, even

                               17
"It is well established that failure to raise an issue in the
district court constitutes a waiver of the argument."
Brenner v. Local 514, United Bhd. of Carpenters, 927 F.2d
1283, 1298 (3d Cir. 1991).

As summarized in Patriot Party I, the Department
advanced four state interests to the District Court: "(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." Patriot Party I, 95 F.3d at 264. With
respect to all four purported state interests, no effort is
made by the state to show why those interests justify
permitting the major parties to cross-nominate, while
forbidding the minor parties from doing so. While such
interests may be sufficiently weighty in light of Timmons to
justify a general ban on fusion, they are not sufficiently
weighty to justify a ban that discriminates between major
and minor parties.

First, the sore loser justification is insufficient to satisfy
the applicable level of intermediate scrutiny. As the panel
explained in Patriot Party I, sore losers"are candidates who
lose a major party primary but insist on running on a
minor party ticket in the general election." Id. at 265.
Another panel of this court recently recognized that sore
loser and disaffiliation laws have been upheld. Council of
Alternative Political Parties v. Hooks, 121 F.3d 876, 881 (3d
Cir. 1997) (citing Storer v. Brown, 415 U.S. 724 (1974)).12
_________________________________________________________________

after it was suggested as a possibility at oral argument." Patriot Party
I,
95 F.3d at 264 n.6. The panel concluded that, "[b]ecause the
Department has shown no interest in pursuing this line of argument, we
will not dwell on it in this opinion." Id. Even if we were to consider the
Department's latest reversal of position, we would not find this state
interest persuasive. Once again, the Department does not explain why a
voter's alleged interest in knowing which "pure" candidates will refuse a
cross-nomination justifies discrimination against minor parties.

12. The Court in Timmons relied on Storer, in which the Court "upheld
a California statute that denied ballot positions to independent

                               18
The panel in Hooks, however, rejected New Jersey's attempt
to justify early filing deadlines on the grounds that they
prevented sore loser candidacies, stating that "they are
both too broad . . . and too narrow." Id. (citing Anderson,
460 U.S. at 805 & n.31). Similarly, the Pennsylvania laws
at issue here cannot be justified as preventing sore loser
candidacies because they are too broad and too narrow. As
the panel noted in Patriot Party I, the Pennsylvania laws
only "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." Patriot Party I, 95 F.3d at 165. The laws are too
broad, however, because they bar a third party from
nominating a candidate such as Ms. Childress even though
she did not lose either primary race and was thus not a
sore loser. They are too narrow because they do not prevent
candidates like Mr. Eshenbaugh from continuing on as the
Democratic candidate even though he had lost the
Republican primary.

Next, the Department asserts a state interest in
preventing voter confusion and ballot clogging caused by
_________________________________________________________________

candidates who had voted in the immediately preceding primary
elections or had a registered party affiliation at any time during the
year
before the same primary elections." Timmons, 117 S. Ct. at 1374 (citing
Storer, 415 U.S. at 728). The disaffiliation provision in Storer, however,
differs from the Pennsylvania laws in at least one crucial respect. The
Court in Timmons noted that in Storer , the challenged law "did not
discriminate against independent candidates." Timmons, 117 S. Ct. at
1374 (citing Storer, 415 U.S. at 734). Indeed, in describing the
California
statute, the Court in Storer observed that, apart from the fact that an
independent candidate needed to "qualify for the ballot by demonstrating
substantial public support" in some other way than standing for a
primary election, "the qualifications required of the independent
candidate are very similar to, or identical with, those imposed on party
candidates." Storer, 415 U.S. at 733.

Similarly, the Court in Timmons quoted from its decision in Burdick v.
Takushi, in saying that " `we have repeatedly upheld reasonable,
politically neutral regulations that have the effect of channeling
expressive activit[ies] at the polls.' " Timmons, 117 S. Ct. at 1375
(quoting Burdick, 504 U.S. at 437-38). Because the Pennsylvania laws
discriminate against minor parties, they are not politically neutral.

                               19
the monopolization of the ballot by minor candidates and
the proliferation of parties. The Department, however, does
not explain why minor parties can be prevented from
monopolizing the ballot and causing voter confusion when
the major parties are allowed to do so through major party
cross-nomination. In upholding Minnesota's general fusion
ban, the Court in Timmons specifically disclaimed reliance
on the state's alleged interest in avoiding voter confusion.
Timmons, 117 S. Ct. at 1375 n.13. This asserted interest
carries even less weight here. Indeed, the fact that the
Pennsylvania laws discriminate between major and minor
parties undermines this asserted interest, because major
party cross-nomination (which is allowed) would seem to
pose just as large a risk of voter confusion. Moreover, as
the panel observed in Patriot Party I, "the Department has
presented no evidence to indicate that fusion is likely to
produce a crippling proliferation of minor parties. . . .
Furthermore, Pennsylvania retains the authority to set
reasonable threshold requirements for parties seeking
admission to the ballot." Patriot Party I, 95 F.3d at 266.

The Department also asserts that allowing cross-
nomination by minor candidates will allow a candidate to
bleed off votes of independent voters to bolster his or her
major party endorsement. This state interest was not raised
in the Timmons case, and we reject it here. As the panel
pointed out in Patriot Party I, "[c]ross 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." Id. at 267. Indeed, allowing the
major parties to cross-nominate may actually serve to bleed
off minor party votes, as an individual who supports a
minor party's platform but does not want to waste a vote on
a minor candidate may cast a ballot instead on a candidate
who has been nominated by both major parties. Once
again, the fact that major parties are allowed to cross-
nominate undermines this proffered state interest.

Finally, the argument that the laws serve an interest in
encouraging new candidates to run as independents is also
undermined by the fact that major parties may cross-
nominate. "If the Commonwealth bans cross-nomination by
minor parties to encourage new candidates for office, it

                               20
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." Id. If anything, the current statutory scheme
may discourage independent candidates. A three-way race
against two major party candidates would be formidable
enough for an independent candidate. An independent
candidate would face an even greater challenge running
against a candidate nominated by both major parties.

In sum, we find unpersuasive each of the interests that
the Department has offered in support of Pennsylvania's
discriminatory statutory scheme. The fact that
Pennsylvania allows major parties to engage in cross-
nomination in certain local elections, but forbids minor
parties from so doing, constitutes "invidious discrimination"
in violation of minor parties' right to equal protection of the
laws. The facially discriminatory nature of the laws imposes
a heavier burden on minor parties than a general fusion
ban of the type considered in Timmons. Moreover, unlike
the Timmons case, the Department in this case has offered
no "important" or "sufficiently weighty" state interests that
justify, even under intermediate scrutiny, the
discriminatory burdens imposed on minor parties.

V. Conclusion

We reaffirm the holding of the Patriot Party I panel that
25 Pa. Stat. Ann. SS 2936(e) and 2911(e)(5) violate the
Patriot Party's right to equal protection of the laws by
banning cross-nomination of candidates by minor parties in
certain local elections. Therefore, we will affirm the orders
of the District Court denying Rule 60(b) relief in
Eshenbaugh's case (No. 97-3359) and granting summary
judgment for the Patriot Party in Childress's case (No. 96-
3677). The injunction of the District Court, as it appears in
Paragraph 4 of the District Court's Order of December 9,
1996, is affirmed as written. However, because we affirm
only on equal protection grounds, we will remand the
Childress case with instructions that the District Court
delete from Paragraph 3 of that Order the phrase"to free

                               21
association under the First and Fourteenth Amendments of
the Constitution, and".13
_________________________________________________________________

13. Paragraphs 3 and 4 of the District Court Order of December 9, 1996
state:

3. Article IX, Sections 951(e)(5) and 976(e) of the Act of June 3, 1937,
P.L. 1933, Pennsylvania Election Code, (the code) 25 P.S. SS2911(e)(5)
and 2936(e) (Sections 2911(e)(5) and 2936(e)) are declared to be an
unconstitutional burden on the right of plaintiff, the Patriot Party of
Allegheny County, to free association under the First and Fourteenth
Amendments of the Constitution, and to equal protection of the law
under the Fourteenth Amendment to the Constitution insofar as they
prohibit plaintiff, a minor political party, from nominating any person as
a Patriot Party candidate for any office referred to in Section 2870(f) of
the Code, 25 P.S. S2870(f), because such person is also a major party
candidate for that office.

4. Defendants are hereby enjoined from enforcing the provisions of
Sections 2911(e)(5) and 2963(e) of the Code to prevent a minor political
party from nominating a candidate for any office referred to in Section
2870(f) of the Code because that candidate files a petition for a major
party nomination to that office or is nominated as a candidate for that
office in the primary election of a major party.

                               22
McKEE, Circuit Judge, concurring:

I concur fully with the majority's holding that the
Supreme Court's decision in Timmons v. Twin Cities Area
New Party does not affect this Court's review of
Pennsylvania's discriminatory anti-fusion laws under the
Equal Protection Clause. I further concur in the majority's
conclusion that the anti-fusion laws at issue here violate
the Equal Protection Clause. I believe, however, that, under
the Equal Protection Clause, when a law both discriminates
and burdens a fundamental right, strict scrutiny, rather
than intermediate scrutiny, applies. See Clark v. Jeter, 486
U.S. 456, 461 (1988) ("Classifications based on race or
national origin and classifications affecting fundamental
rights are given the most exacting scrutiny.") (internal
quotations omitted); Nordlinger v. Hahn, 505 U.S. 1, 10
(1992) (discriminatory statutes that interfere with a
fundamental right are subject to strict judicial scrutiny);
Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58
(1988) (same).

The classification here must be narrowly tailored to serve
a compelling State interest to survive an Equal Protection
challenge. Indeed, the Supreme Court repeatedly has
applied precisely this standard to review ballot restrictions
which disparately infringe upon First Amendment
associational rights. See, e.g., William v. Rhodes, 393 U.S.
23, 31 (1968) (In reviewing a ballot restriction applicable
only to minor parties, the Court stated: "In determining
whether the State has power to place such unequal
burdens on a minority group where [associational rights]
are at stake, the decisions of this Court have consistently
held that `only a compelling state interest in the regulation
of a subject within the State's constitutional power to
regulate can justify limiting First Amendment freedoms.' ")
(quoting NAACP v. Button, 371 U.S. 415 (1963)); American
Party of Texas v. White, 415 U.S. 767, 780 (1974) ("We
agree with the District Court that whether the qualifications
for ballot position are viewed as substantial burdens on the
right to associate or as discriminations against parties not
polling 2% of the last election vote, their validity depends
upon whether they are necessary to further compelling
state interests," which cannot be served "equally well in

                               23
significantly less burdensome ways."); Storer v. Brown, 415
U.S. 724, 729 (1974) (applying Williams v. Rhodes strict
scrutiny to review ballot restrictions on independent
candidates); Illinois State Bd. of Elec. v. Socialist Workers,
440 U.S. 173, 184-86 (1979) (applying strict scrutiny
standard to review disparate nominating requirements); see
also, e.g., Harper v. Virginia State Bd. of Elec., 383 U.S.
663, 670 (1966) ("close scrutiny" applied to poll tax, which
discriminates on the basis of wealth, because fundamental
right infringed); Bullock v. Carter, 405 U.S. 134, 142-44
(1972) (applying Harper standard to filing fee system).

As the Supreme Court recognized in Timmons, anti-fusion
laws, like the ones at issue here, burden First and
Fourteenth Amendment associational rights. Timmons, 520
U.S. 351, 357-58 (1997); see also Munro v. Socialist
Workers Party, 479 U.S. 189, 193 (1986) (recognizing that
balloting and eligibility requirements for minority party
candidates impinge fundamental associational rights);
Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983)
(same); Williams, 393 U.S. at 30-31 (same). In determining
whether the burdens actually violated the First
Amendment, the Court stated:

       Regulations imposing severe burdens on plaintiffs'
       rights must be narrowly tailored and advance a
       compelling state interest. Lesser burdens, however,
       trigger less exacting review, and a State's `important
       regulatory interests' will usually be enough to justify
       `reasonable, nondiscriminatory restrictions.'

Timmons, 520 U.S. at 358 (emphasis added). Thus, the
Court's decision in Timmons to apply a less exacting
standard of review was premised on the fact that the
Minnesota anti-fusion laws were nondiscriminatory. That is
not our case: Pennsylvania's anti-fusion laws discriminate
between major parties and minor parties. Therefore, even
assuming that the standard used in Timmons applies in the
First Amendment context, I doubt its application in the
Equal Protection context.

Thus, because the Pennsylvania anti-fusion laws are both
discriminatory and burden a fundamental right, I believe
that under established Equal Protection doctrine we must

                                24
strictly scrutinize Pennsylvania's discriminatory treatment
of minority party candidates under the anti-fusion laws.
Because I agree with the majority's conclusion that the
ballot restrictions do not pass constitutional muster even
under the less exacting scrutiny applied by the majority, it
necessarily follows that they do not pass muster under the
heightened scrutiny standard that I advocate. Accordingly,
I concur in the majority's result.

                               25
GREENBERG, Circuit Judge, concurring and dissenting:

I concur and join in the court's opinion denying the
Department's motion under Fed. R. Civ. P. 60(b)(6). I add
the following comments, however, with regard to that
motion. By the time of our decision in Patriot Party I on
September 9, 1996, the Supreme Court had granted
certiorari in Twin Cities Area New Party v. McKenna,, 73
F.3d 196 (8th Cir. 1996). See McKenna v. Twin Cities Area
New Party, 517 U.S. 1219, 116 S.Ct. 1846 (1996). Thus,
the Department had every reason to believe that the
Supreme Court would review at least a portion of the theory
underlying our opinion in Patriot Party I. Moreover, I
dissented in Patriot Party I. See Patriot Party v. Allegheny
County Dep't of Elections, 95 F.3d 253, 270 (3d Cir. 1996).
Nevertheless, in the face of these encouraging signs, the
Department chose not to seek certiorari in Patriot Party I.
Therefore, it would be difficult to justify granting the Rule
60(b)(6) motion. Moreover, even though this case has
ramifications going beyond the interests of the parties, in
view of the court's decision in No. 96-3677, Childress's
case, with respect to the equal protection claim, the
Department cannot obtain effective relief on the merits in
No. 97-3359.

While I join in the result in No. 96-3677, with respect to
Childress, the opinion plainly goes too far and thus I must
dissent from it. In dissenting in Patriot Party I, I made the
following point:

       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

                               26
       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, 471 Pa. 471,
       370 A.2d 702, 705-07 (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.

Patriot Party I, 95 F.3d at 271.

The circumstances I contemplated in Patriot Party I that
might arise in fact came to pass in Childress's case
because, as the majority points out, Childress "perfected
her nomination as one of the Patriot Party's candidates by
filing nomination papers with the Department" on May 16,
1995, "before the municipal primary elections." Majority
Op. at 5. Accordingly, the question for the court to resolve
in No. 96-3677 should not be whether 25 Pa. Stat. Ann.
SS 2936(e) and 2911(e)(5) are unconstitutional as violating a
minor party's right to equal protection of the laws. Rather,
the question should be whether the statutes are
unconstitutional as violating a minor party's right to equal
protection of the law when its candidate declares her intent
to cross-file before a primary election. Indeed, the Patriot
Party itself well understands this point because in its brief
in No. 96-3677 it explains that "[t]he present case (Patriot
II) was also filed as an `as applied' challenge after the
County refused to permit the Party [to] nominate another
candidate (Barbara Childress) in the 1995 municipal
election cycle." Br. at 5 (emphasis added).

I will accept the result that the statutes in issue are
unconstitutional when applied to a minor party candidate,
such as Childress, cross-filing before the primaries,
because a candidate by cross-filing before the primary
election may seek both major parties' nominations. But
sections 2936(e) and 2911(e)(5) surely are not
unconstitutional if applied in circumstances paralleling
those in Eshenbaugh's case in Patriot Party I, because there
the candidate was seeking to cross-file at a time when the
major parties had selected their candidates at the primaries

                               27
and thus could no longer nominate cross-filing candidates.
It therefore follows that applying sections 2936(e) and
2911(e)(5) only when a candidate seeks to cross-file after a
primary treats a minor party exactly the same as the major
parties. Consequently, there simply cannot be an equal
protection problem in those circumstances, as the statutes
do not place unequal burdens on minor and major parties.
Thus, the Department need not demonstrate any interest to
justify discriminatory treatment of major and minor parties,
as there is no discriminatory treatment to justify.
Accordingly, in declaring sections 2936(e) and 2911(e)(5)
unconstitutional without regard for when the candidate
cross-files, the majority goes too far.

I close by making one more point. A court sometimes
must declare a state statute unconstitutional. Nevertheless
should we not, as a federal court, be restrained in taking
such action? The Supreme Court of Pennsylvania in
Commonwealth v. The First School, 370 A.2d 702, 705-07
(Pa. 1977), made it clear that if a statute can be applied
constitutionally in some situations then a court should so
apply it. After all, 1 Pa. Cons. Stat. Ann. S 1925 (1995)
(emphasis added) provides:

        The provisions of every statute shall be severable. If
       any provision of any statute or the application thereof to
       any person or circumstance is held invalid, the
       remainder of the statute, and the application of such
       provision to other persons or circumstances, shall not be
       affected thereby, unless the court finds that the valid
       provisions of the statute are so essentially and
       inseparably connected with, and so depend upon, the
       void provision or application, that it cannot be
       presumed the General Assembly would have enacted
       the remaining valid provisions without the void one; or
       unless the court finds that the remaining valid
       provisions, standing alone, are incomplete and are
       incapable of being executed in accordance with the
       legislative intent.

We should follow First School and apply section 1925 here
because it is clear that the statutes easily can be applied
constitutionally to a minor party's cross-filing after the
primary. Moreover, can anyone really believe that the

                               28
Legislature would not want sections 2936(e) and 2911(e)(5)
applied to minor party candidates filing after the primary
merely because they cannot be applied to those filing
earlier? Surely, the Legislature would want the statutes
applied so far as is possible.

The majority indicates that "[b]ecause the Pennsylvania
law permits fusion by major parties, but prohibits fusion by
minor parties, it is, on its face, discriminatory." Maj. Op. at
12. A proper respect for judicial restraint should lead us to
the result that the discrimination be eliminated by allowing
the minor parties to fuse their candidates with the major
parties' candidates when the major parties' candidates can
fuse with each other. Instead, the majority creates a new
type of discrimination, as it allows a minor party to fuse its
candidates with those of a major party when the major
parties' candidates cannot fuse. Thus, I dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                29
