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June 7, 1972

PEOPLE'S PARTY et al., Plaintiffs,
C. Dolores TUCKER, Secretary of the Commonwealth of Pennsylvania, Defendant

The opinion of the court was delivered by: MUIR

MUIR, District Judge.

The question in this case is whether the Pennsylvania Election Code violates the federal constitution. We conclude that it does.

 The specific portions of the code which are attacked are those which require political bodies to secure a substantial number of signatures to nominating papers during a three-week period in the winter in order to have the names of their candidates appear on the fall ballot. A political body is, in brief, a political organization which at the last general election in Pennsylvania polled a vote of less than 2% of the largest vote cast in the state for any elected candidate. Political organizations which polled a larger vote are classified as political parties. *fn1" Political bodies in Pennsylvania do not use the primary election machinery for nomination of their candidates.

 The amendment to the Code which precipitated this case was passed December 22, 1971. *fn2" It quadrupled the signature requirement on nominating papers of candidates of political bodies to 2% of the largest entire vote cast for a statewide candidate at the last general election. This year, application of the statute would require 35,624 signatures on nominating papers if the nominee of a political body is to secure a place on the fall ballot. The amendment left intact the prior requirement that these signatures be obtained in a three-week period beginning the 10th Wednesday before the primary. *fn3"

 During the prior three-week period, candidates for political party nomination were circulating their petitions in anticipation of the primary which was held April 25, 1972. In order for a presidential candidate's name to appear on the primary ballot, he must obtain within three weeks 100 signatures in each of 10 counties. If nominated at the primary by his party, the candidate's name and party designation could thus appear on the fall ballot based on nomination papers containing a minimum of 1,000 signatures, properly spaced geographically. Contrast this with an independent candidate's burden of obtaining 35,624 signatures also within a three-week period.

 In 1972, three political bodies made the attempt to obtain the necessary 35,624 signatures in three weeks. Only the Communist Party succeeded.

 The forms of nominating papers furnished Plaintiffs by the Defendant Secretary of the Commonwealth contained a wholly unwarranted phrase that electors signing the same "represented" the particular political body, thus adding to the obstacles placed in the path of circulators of those papers.

 The Plaintiffs charge that their rights under the First and Fourteenth Amendments to the United States Constitution have been infringed by these requirements.

 The essence of a democracy is the right to vote freely. Every citizen must have a full right effectively to participate in the political process. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Independent political bodies and groups legitimately are interested in having their candidates' names and independent political labels appear on the ballot at the general election and any tinkering with the electoral process which deprives them of that right will be struck down. *fn4" The right to appear on the ballot is protected by the First Amendment with the proviso that a state may constitutionally restrict the right by showing a compelling interest in so doing. Voters have the right under the First Amendment to associate for the advancement of political beliefs and for the effective casting of their votes, Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968), and the development of new programs by independent political bodies should be encouraged. Sweezy v. N.H., 354 U.S. 234, 250-251, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957). Competition at the polling place between new and old ideas is at the very heart of our political system and is guaranteed by the First Amendment. Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968).

 It is proper for the legislature to prescribe different methods of nomination for use by political bodies on the one hand and political parties on the other. But each such method must be a reasonable one. If an unreasonable requirement is imposed, the "compelling state interest" or "compelling necessity" test of Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968) is not met. Of course, the Commonwealth has an interest in being assured that a candidate or political body has at least a modest amount of support before being granted ballot space. Jenness v. Fortson, 403 U.S. 431, 442, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

 We do not find the number of signatures required of a political body by the Pennsylvania Election Code to be an unreasonable one. Most states have some requirement as to a minimum number of signatures for nomination papers. *fn5" The Georgia statute requires that signatures of 5% of the total of all registered voters be obtained on nomination papers over a six-month period. This was held valid in Jenness v. Fortson. *fn6" The requirement in our case of 2% of the largest vote cast for any elected candidate in the state obviously calls for a lesser number of signatures than 5% of the registered voters in the state.

 The Pennsylvania Election Code is in general an exceptionally well considered statute and the defect complained of here is the first serious flaw in the statute which has come to our attention. We are most reluctant to declare a state act unconstitutional, whether in whole or ...

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