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LISKER v. KELLEY

August 17, 1970

Carol E. LISKER, Plaintiff,
v.
Joseph J. KELLEY, Jr., Secretary of the Commonwealth of Pennsylvania, and C. Russell Welsh, Jr., Deputy Secretary of the Commonwealth of Pennsylvania, Defendants



The opinion of the court was delivered by: HERMAN

HERMAN, District Judge:

On April 6, 1970 plaintiff filed her complaint in this court seeking a declaratory judgment and an injunction in which she attacks the constitutionality of the Pennsylvania Statute, Act of December 22, 1951, P.L. 1726 § 1 et seq., as amended by the Act of June 29, 1967, P.L. --, No. 35 (65 P.S. § 212 et seq.), known as the Pennsylvania Loyalty Act.

 Plaintiff specifically complains that on March 30, 1970 she filed with the defendants Joseph J. Kelley, Jr., Secretary of the Commonwealth of Pennsylvania, and C. Russell Welsh, Jr., Deputy Secretary of the Commonwealth, her Nomination Paper as a candidate of the Socialist Workers Party in the 1970 General Election for the Office of Representative in the General Assembly from the 187th State Representative District which was complete and proper and accompanied by the necessary filing fee, and that defendants refused to accept it for the sole reason that plaintiff had failed to sign the Candidate's Loyalty Oath as required by the aforementioned act of assembly (65 P.S. § 224).

 
"I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity."

 It is further stipulated that plaintiff, on March 29, 1970, struck from her Nomination Paper the words, "And I further swear (or affirm) that I am not a subversive person as defined in the 'Pennsylvania Loyalty Act,' Act of December 22, 1951, (Pamphlet Laws 1726)."

 It was also stipulated that the term "subversive person," as defined in the Pennsylvania Loyalty Act, was redefined by the amendment to said act, made by Act No. 35, approved June 29, 1967, (65 P.S. § 212) and that the reference to the Act of December 22, 1951 contained in the Nomination Paper includes all amendments made thereto.

 Plaintiff contends that the action of the defendants in refusing to receive and file her Nomination Paper for the sole reason that she failed to sign the Candidate's Loyalty Oath as required by the act of assembly, infringes upon and invades her rights of freedom of speech, belief, and association, in violation of the First and Fourteenth Amendments *fn1" to the Constitution of the United States. She also contends that the said oath requirement, by summarily disqualifying her as a candidate for office, is in violation of the Fifteenth Amendment because it denies qualified electors their right to vote for her in the election of November 3, 1970.

 Plaintiff's contention that the action of defendants violates certain sections of the Constitution of the Commonwealth of Pennsylvania should be submitted to the courts of this Commonwealth.

 The Pennsylvania Loyalty Act, as amended, provides, in pertinent part:

 
"No person shall become a candidate for election under the provisions of the * * * 'Pennsylvania Election Code', and its amendments, to any State, district, county, or local public office whatsoever in this Commonwealth, unless he shall file with his nomination petition, nomination paper or nomination certificate a statement, under oath or affirmation, that he is not a subversive person,2 as defined in this act, which statement shall contain notice that it is subject to the penalties of perjury. No nomination petition, nomination paper or nomination certificate shall be received for filing by any county board of elections or by the Secretary of the Commonwealth unless accompanied by the statement required hereby, nor shall the name of any person who has failed or refused to make the statement be printed on any ballot or ballot label to be used at any general, municipal, primary, or special election."

 The definition section of the act (65 P.S. § 212) defines subversive organization as,

 
"[Any] organization which engages in or advocates, abets, advises or teaches, or a purpose of which is to engage in or advocate, abet, advise or teach activities intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States or of the Commonwealth ...

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