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SALERA v. TUCKER

August 1, 1975

BERNARD SALERA and the UNITED STATES LABOR PARTY
v.
C. DOLORES TUCKER, Secretary of the Commonwealth of Pennsylvania, et al. CONSUMER PARTY AND MAX WEINER, Individually and on behalf of a class of registered voters of Pennsylvania v. C. DELORES TUCKER, Secretary of the Commonwealth of Pennsylvania, et al.



The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 Plaintiffs in Salera et al v. Tucker et al, Civil Action No. 74-2340, are the United States Labor Party and Bernard Salera, a Labor Party candidate for U.S. Congressman in the November, 1974 election and for Philadelphia City Councilman in the upcoming November election. Plaintiffs in Welsh et al v. Tucker et al, Civil Action No. 74-2353, are the Consumer Party, Max Weiner, a registered voter in the City and County of Philadelphia who has in the past been a candidate of the Consumer Party for various political offices, and Thomas E. Welsh, a registered voter of Pennsylvania's Sixth Senatorial District who sought nomination as an independent candidate for State Senator from the District in the 1974 elections. Both the Labor Party and the Consumer Party are classified as "political bodies" by Pennsylvania law, *fn1" which means that their candidates may only appear on the ballot through nomination papers signed by a certain number of the registered voters in the district where the candidates seek election. Pennsylvania requires that these signatures be collected in a three week period beginning the tenth Wednesday before the primary and ending the seventh Wednesday prior to the primary. 25 P.S. §§ 2913(b) and (c). This means that a political body may begin gathering signatures on nomination papers 239 days before the general election (265 days in a presidential election year) and must file these papers no later than 218 days before the general election (244 days in a presidential election year). *fn2" The nomination papers filed on behalf of the candidate plaintiffs for the November, 1974 election were challenged in the state courts on the grounds that they were filed after this statutory period had terminated. Throughout the challenge proceedings plaintiffs asserted that the statutory deadline had been found unconstitutional by two lower federal courts, *fn3" and that these courts had established a new filing date of August 14, which was to govern the filing of nomination papers until the state legislature created a new filing date. The state court struck the plaintiff candidates' nomination papers solely because of their untimeliness under § 2913(c) and plaintiffs sought relief in this Court. Between the time plaintiffs filed their complaints and the time their cases were heard, a three-judge court in the Middle District of Pennsylvania, the same district in which Pennsylvania's filing deadline was first found unconstitutional, declared that the earlier decision was no longer valid and that the statutory deadline was constitutional. Williams v. Tucker, 382 F. Supp. 381 (M.D. Pa. 1974). Upon a showing that plaintiffs had relied on the earlier decisions establishing the August 14 date as well as on statements by employees of defendant Tucker confirming that date, we ordered that plaintiffs and others similarly situated should appear on the ballot if their nomination petitions were filed by August 14, 1974 and were otherwise in order. Consideration of the merits of plaintiffs' constitutional claims was postponed pending the 1974 elections.

 A hearing on the merits was held on February 11, 1975. Plaintiffs maintained that the time requirements of 25 P.S. § 2913(b) and § 2913(c) substantially and unconstitutionally burden their access to the ballot. Specifically, plaintiffs challenged the three week time period provided by these sections as too short and too remote from the general election to allow small parties to gather the necessary signatures without imposing undue hardship on their members, candidates and canvassers. In addition, the Welsh plaintiffs contended that the provision of the Pennsylvania Election Code giving primary candidates three weeks in which to gather the requisite signatures for primary nomination petitions while requiring that independent candidates gather a greater number of signatures within the same time frame violates the Equal Protection Clause of the Fourteenth Amendment. In lieu of offering testimony at the hearing, the parties stipulated as to what certain plaintiffs' witnesses would state if called to testify. The stipulated testimony concentrated primarily on the difficulties encountered in collecting signatures so far in advance of the general election and in the time span alloted by § 2913(b) and (c).

 Before we can address the constitutional questions we must be sure that we are still confronted with a live controversy. It is axiomatic that the federal courts will not accept jurisdiction over a controversy which is moot. Before accepting jurisdiction a federal court must be assured that it is not being called upon to decide questions "that cannot affect the rights of litigants in the case before [it]". North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971). Defendants herein assert that the Salera matter is moot because the request for injunctive relief in that case was restricted to the past election. *fn4"

 Any discussion of mootness properly begins with a recognition of the Supreme Court's treatment of that issue in the context of constitutional challenges to state election laws. In Rosario v. Rockefeller, 410 U.S. 752, 36 L. Ed. 2d 1, 93 S. Ct. 1245 (1973), the Court stated that plaintiffs' declaratory judgment action against a primary registration requirement was properly heard by the lower court even though plaintiffs had qualified to vote in succeeding primaries. In Storer v. Brown, 415 U.S. 724, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974), the Court held that plaintiffs could maintain their suit to have certain state ballot restrictions declared unconstitutional even though the election in which plaintiffs sought to appear on the ballot was long past and that "no effective relief can be provided to the candidates or voters . . ." 415 U.S. at 737 n.8, 39 L. Ed. 2d at 727 n.8. The Court stated:

 
". . . [This] case is not moot, since the issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied to future elections. This is therefore, a case where the controversy is 'capable of repetition, yet evading review' [citations omitted]. The 'capable of repetition yet evading review' doctrine, in the context of election cases, is appropriate when there are 'as applied' challenges as well as in the more typical case involving only facial attacks. The construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held." 39 L. Ed. 2d at 727-728, fn. 8.

 The above quoted language would remove all questions of mootness except for the failure of the Salera plaintiffs to unequivocally request declaratory relief. The Court seems willing to hear cases where injunctive relief is no longer appropriate because declaratory relief will "have the effect of simplifying future challenges"; where, however, declaratory relief is not sought this reasoning may not apply. A fair reading of their complaint leads to the conclusion that they not only sought injunctive relief for the 1974 election but for subsequent elections as well. Moreover, there is evidence that both the U.S. Labor Party and plaintiff Salera himself are actively seeking access to the ballot for the November, 1975 local election. The combination of the scope of plaintiffs' prayer for relief and their involvement in a post-1974 campaign is persuasive that this suit will achieve the goals set out in Storer, supra, and is thus not moot.

 The Supreme Court has identified the individual, party, and state interests involved when the state restricts voting, registration, or access to the ballot. In Williams v. Rhodes, 393 U.S. 23, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968), the Court held that Ohio's ballot qualifications, which were so onerous as to make it "virtually impossible" for independent parties to qualify, 393 U.S. at 24, violated the Equal Protection Clause of the Fourteenth Amendment. According to the Court, these ballot restrictions burdened "two different, although overlapping, kinds of rights -- 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." 393 U.S. at 30. The Court recognized substantial state interests in encouraging compromise and political stability, in attempting to ensure that the election winner will represent a majority of the community, and in providing the electorate with an understandable ballot, but reasoned that these objectives could be achieved by less restrictive means than the challenged limitations. 393 U.S. 23, 32-33, 89 S. Ct. 5, 21 L. Ed. 2d 24.

 The Court has had numerous occasions since Williams to examine the interrelation of these and other interests. In Kramer v. Union Free School District No. 15, 395 U.S. 621, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969), the Court struck down a New York statute limiting the franchise in School Board elections to those who either owned (or leased) real property or were parents of school-age children. The Court, assuming arguendo the legitimacy of a state interest in limiting the vote to those "primarily affected" by School Board affairs, stated that the statute was not "sufficiently tailored" to achieve this interest. 395 U.S. at 632-633. In Bullock v. Carter, 405 U.S. 134, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972), the Court deemed unconstitutional Texas' requirement that primary candidates pay a registration fee proportionate to the salary paid to the office which the candidate sought. These fees, the stated purpose of which was to finance the primary elections, ranged from $150 for a State Representative representing a sparsely populated district to $1,000 for a U.S. Senator. 405 U.S. 134, 139, 92 S. Ct. 849, 31 L. Ed. 2d 92. The Court stated:

 
"Without making light of the State's interest in husbanding its revenues, we fail to see such an element of necessity in the State's present means of financing primaries as to justify the resulting incursion on the prerogatives of voters." 405 U.S. at 149.

 In Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972), the Court, again imposing the "strict scrutiny" test of Williams, Kramer, and Bullock, *fn5" supra, invalidated Tennessee's one-year residency requirement for voting.

 
". . . [The] States have evolved comprehensive . . . election codes regulating in most substantial ways . . . the time, place, and manner of holding primary and general elections, the registration and qualifications of ...

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