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CONSUMER PARTY v. TUCKER

September 28, 1973

CONSUMER PARTY and Max Weiner, Individually and on behalf of a class of registered voters of Pennsylvania, Plaintiffs,
v.
C. Dolores TUCKER, Secretary of the Commonwealth of Pennsylvania, et al., Defendants


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 Presently before the Court is the above captioned plaintiffs' motion for temporary and final relief, wherein said plaintiffs seek to enjoin the enforcement of a provision of the Pennsylvania Election Code of 1937, P.L. 1333, as amended by the Act of August 13, 1963, P.L. 707, § 12, 25 P.S. § 2913(b). The above cited statute regulates the time for obtaining signatures on nomination papers. The plaintiffs request that the time limitations established by, and that Section 953(b) of the Election Code, as amended by the Act of August 13, 1963, P.L. 707, § 12, 25 P.S. § 2913(b), be declared unconstitutional and void under the Constitution and laws of the United States as applied to the plaintiffs and the class of registered voters which the plaintiff Max Weiner represents; and that the defendants, their agents, employees, servants, and all persons acting in privity or concert with them be enjoined from enforcing the time limitations of § 953(b) of the Election Code; from refusing to receive and file plaintiffs' nomination papers as submitted on August 9, 1973, for Max Weiner as a candidate of the Consumer Party for the office of City Controller of the City of Philadelphia in the election of November 6, 1973; and from printing or directing the printing of ballots or preparing and/or placing any names of candidates in and upon any voting machine for use in the election of November 6, 1973, and in all subsequent November elections, unless there be included on such ballots and upon such voting machines, the names of those candidates of political bodies which have submitted nomination papers on or before the fourteenth day of August in each year, and which nomination papers are otherwise in conformance with the requirements of the Election Code, including the required affidavits and filing fees.

 In that there are no contested issues of fact and all parties, by their counsel, have requested a prompt decision on the basis of the pleadings, including the motion for temporary and final relief, and the answer thereto, and after a hearing in chambers on September 24, 1973, this Court makes the following findings of fact, conclusions of law, and enters the following order.

 FINDINGS OF FACT

 1. Section 953(b) of the Pennsylvania Election Code of 1937, P.L. 1333, as amended by the Act of August 13, 1963, P.L. 707, § 12, 25 P.S. § 2913(b) has already been held unconstitutional by a Three-Judge Court convened in the Middle District of Pennsylvania in Civil Action No. 72-102 (per Adams, Circuit Judge, Muir and Nealon, District Judges), wherein injunctive relief was granted as to federal and state-wide offices to be filled in the election of November of 1972. People's Party v. Tucker, 347 F. Supp. 1 (M.D.Pa.1972)

 2. The instant civil action presents issues of Constitutional Law identical in all respects with the issues tried and adjudicated in the Middle District action, except that relief is sought herein as to the election of November of 1973, and as to an office to be filled by the voters of a single county. The statute here urged to be unconstitutional is the same statute held "unconstitutional and void" in the Middle District action.

 3. Plaintiff Consumer Party is an unincorporated association of persons who seek to elect officers pledged to defend and advance the interests of consumers, politically and economically, which has run candidates in Pennsylvania for federal, state, and local elected offices. The Consumer Party is one of the original plaintiffs named in the complaint filed in the Middle District action.

 4. Plaintiff Max Weiner is a citizen of Pennsylvania residing in the City and County of Philadelphia, within the Eastern District of Pennsylvania, and is a qualified and duly registered elector eligible for the office of City Controller of the City of Philadelphia, which office is to be filled at the election to be held November 6, 1973. Max Weiner is one of the original plaintiffs named in the complaint filed in the Middle District action in his capacity as Chairman of the Consumer Party.

 5. The Middle District action was commenced and prosecuted not only on behalf of the plaintiffs named in the caption of that complaint, but also "on behalf of all other registered voters of Pennsylvania who wish to consider candidates on the ballot representing the policies and programs of the plaintiff political bodies, a class which is so numerous that joinder of all its members is impractical." The plaintiff Consumer Party is one of the political bodies referred to in that class-action averment.

 6. By Order dated June 7, 1972, the Three-Judge District Court convened in the Middle District of Pennsylvania pursuant to 28 U.S.C. §§ 2281-2284 held that Section 953(b) of the Act of 1937, P.L. 1333, as amended by the Act of 1963, P.L. 707, § 12, 25 P.S. § 2913(b) "is declared unconstitutional and void with respect to the plaintiffs and the class they represent," and further held that the plaintiffs should have until August 14 of the year 1972 to file nominating papers with the Secretary of the Commonwealth of Pennsylvania relating to the general election to be held on November 7, 1972.

 7. The opinion of the Middle District (per Muir, J.) pursuant to which the order was entered, further held that:

 
"We anticipate that the Pennsylvania legislature will enact a new and reasonable provision for circulation of nominating papers by political bodies in years subsequent to 1972. If it does not do so, persons aggrieved in the future may apply to this Court for relief." 347 F. Supp. 1, 4.

 8. Jurisdiction in the instant action, as in the Middle District action, is based upon 28 U.S.C. § 1331(a) in that the matter in controversy exceeds the sum of $10,000 exclusive of interests and costs, and arises under the Constitution and laws of the United States. Jurisdiction is also based upon 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 in that the plaintiffs seek to redress the deprivations by the defendants of rights secured to them by virtue of the First, Fourteenth and Fifteenth Amendments to the United States Constitution. Jurisdiction is further based on 28 U.S.C. § 1344.

 9. Defendant C. Dolores Tucker is the Secretary of the Commonwealth of Pennsylvania and pursuant to the Election Code, 25 P.S. § 2621, is the chief election officer of Pennsylvania and is charged by law with the duty of receiving and accepting nomination papers for federal and state office, including the office of Judge of a court of record to be elected by the voters of one county, and with receiving the filing fees required by law to accompany the filing of such nomination papers.

 10. Defendants Francis B. Patterson, Eugene E. J. Maier, and Louis Menna, City Commissioners, constitute the Board of Elections of the City and County of Philadelphia, Pennsylvania, and are charged by law with the duty of receiving and accepting nomination papers for other offices to be filled by voters of the County of Philadelphia or of a district smaller than the County of Philadelphia and included within that County, and with receiving the filing fees required to accompany the filing of such nomination papers.

 11. A "Political Party" in Pennsylvania, by Article 8, Section 801 of the Election Code, 25 P.S. § 2831, is a political organization one of whose candidates in the last general election polled in each of at least ten counties of the state not less than two percent of the largest entire vote cast in each of those counties for an elected candidate, and polled a total vote in this state at least equal to two percent of the largest entire vote cast in this state for any elected candidate; or which in a general or municipal election to elect county officers polled at least five percent of the largest entire vote cast for any elected candidate in the county. A "political party" nominates its candidates for federal and state office, or for county office, at a primary election, the candidates having been offered through nomination petitions signed by duly registered and enrolled members of that political party who are qualified electors of the state, and filed with the Secretary of the Commonwealth on or before the tenth Tuesday prior to the primary. See 25 P.S. §§ 2867, 2868, 2869, and 2873(d). One hundred signatures are required to nominate a candidate for a county office.

 12. A "Political Body" is a political organization which nominates its candidates for any office to be filled by the electors of the state or of a political subdivision, including a county, by circulating nomination papers to be signed by qualified electors. 25 P.S. §§ 2831(c) and 2911.

 13. The Election Code requires that the number of registered voters signing a nomination paper shall be at least equal to two percent of the largest entire vote cast for any elected candidate in the state or in the electoral district for which the papers are to be filed, and further provides that the number of such signers shall be not less than the number of signers required for nomination petitions for party candidates for the same office. 25 P.S. § 2911(b).

 14. The Election Code further provides, by the section held unconstitutional and void in the Middle District action, that signatures for nomination papers shall be obtained in the time period commencing with the tenth Wednesday prior to the date of the primary election (which under the Election Code is either the fourth Tuesday of April or the third Tuesday of May) and ending with the seventh Wednesday prior to the primary election, 25 P.S. § 2913(b). The next sub-section of the Election Code provides that such nomination papers must be filed on or before the seventh Wednesday prior to the primary election, 25 P.S. § 2913(c).

 15. In the Middle District action, the plaintiff political bodies, including the instant plaintiff Consumer Party, alleged that the requirement that they obtain signatures in the required two percent within the statutory period of 21 days was burdensome, oppressive, and destructive of their right to place candidates upon the ballot and violated their rights under the First and Fourteenth Amendments to the Constitution of the United States.

 16. In the Middle District action, the plaintiffs further alleged that § 2913(b) & (c) of Title 25 of Purdon's Statutes are unlawful and unconstitutional under the Constitution of the United States in that:

 
(a) they are such burdensome and oppressive barriers to placing candidates on the ballot as to violate the right to equal protection of the law under the Fourteenth Amendment to the Federal Constitution;
 
(b) they constitute an impermissibly heavy burden on the rights of freedom of speech, petition, and association of the plaintiff, in violation of the First Amendment to the Federal Constitution;
 
(c) they unduly infringe upon and violate the right to vote of the individual members and the class they represent, in violation of the Fifteenth ...

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