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OBJECTIONS TO NOMINATION PETITION JAMES R. CAVANAUGH FOR 1982 PRIMARY ELECTION FOR DEMOCRATIC NOMINATION FOR OFFICE JUSTICE SUPREME COURT PENNSYLVANIA (04/06/82)

decided: April 6, 1982.

IN RE: OBJECTIONS TO THE NOMINATION PETITION OF JAMES R. CAVANAUGH FOR THE 1982 PRIMARY ELECTION FOR THE DEMOCRATIC NOMINATION FOR THE OFFICE OF JUSTICE OF THE SUPREME COURT OF PENNSYLVANIA


Original jurisdiction in case of In Re: Objections to the Nomination Petition of James R. Cavanaugh for the 1982 Primary Election for the Democratic Nomination for the Office of Justice of the Supreme Court of Pennsylvania.

COUNSEL

Richard L. Orwig, Edelman, O'Pake, Malsnee & Orwig, for petitioner.

Gregory M. Harvey, with him Marc J. Sonnenfeld, of counsel, Morgan, Lewis & Bockius, for respondent.

Mollie A. McCurdy, Deputy Attorney General, with her Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation Section and LeRoy S. Zimmerman, Attorney General, for Commonwealth of Pennsylvania.

Memorandum Opinion and Order by Judge Blatt.

Author: Blatt

[ 65 Pa. Commw. Page 622]

Objections have been filed*fn1 to the nomination petitions of James R. Cavanaugh (candidate) for the Democratic nomination for the office of justice of the Pennsylvania Supreme Court. It is alleged that the candidate failed to obtain 100 valid signatures from each of 5 counties as required by Section 912(b) of the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2872(b).*fn2

A hearing was conducted in this matter on March 23, 1982, at which time the candidate's counsel conceded that more than 100 valid signatures were obtained from only four counties.*fn3 It was argued, however,

[ 65 Pa. Commw. Page 623]

    that the geographic distribution requirement set forth in the Election Code was unconstitutional as being a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and that, inasmuch as the nomination petition admittedly contained over 500 valid signatures, it should be upheld.

The candidate points to the holding of the U.S. Supreme Court in Moore v. Ogilvie, 394 U.S. 814 (1969), to support his contention. It was held there that an Illinois statute requiring independent candidates for nomination for President and Vice-President to obtain 200 signatures from each of 50 different counties was unconstitutional. The necessity for such geographic distribution was held in violation of the "one person one vote" principle enunciated in Baker v. Carr, 369 U.S. 186 (1962) in that it gave voters in less populous counties a greater ability to nominate candidates than voters in more densely populated counties and thereby impermissibly diluted the voting strength of the latter group.*fn4 The candidate also relies heavily on an unreported decision of the Federal District Court for the Eastern District of Pennsylvania, Elliott v. Shapp, Civil Action No. 76-1277 (1979), which held Section 912(a) of the Pennsylvania Election Code, 25 P.S. § 2872(a) to be unconstitutional because it requires candidates for President and United States Senator to obtain signatures of 100 registered voters from each of 10 counties.*fn5 It is argued that these decisions and the rationale employed therein are equally applicable here.

[ 65 Pa. Commw. Page 624]

The objector contends first that the doctrine of "one person one vote" proclaimed by Baker v. Carr is not applicable to judicial elections. See e.g., Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) aff'd 409 U.S. 1095 (1973); Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971), aff'd 409 U.S. 807 (1972). We do not believe, however, that these cases or the others cited by the objector are persuasive here.

In Wells, it was held that the "one person one vote" principle did not apply to a Louisiana statute which provided that each judicial district in the state would elect a supreme court justice, even though the relative populations of those districts were not comparable. The court in Wells decided, as have other courts, that judges need not be elected from districts which are of equal population, because judges are not representatives of the people and the voters do not have a right to equal allocation of judicial services. See also, Gilday v. Board of Elections of Hamilton County, 472 F.2d 214 (6th Cir. 1972); Concerned Citizens of Southern Ohio, Inc. v. Pine Creek Conservancy District, 473 F. Supp. 334 (S.D. Ohio 1977); Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 1972). The present case, however, does not involve an allegation of unequal representation of the electorate in judicial offices. It is premised upon the argument that 25 P.S. § 2872(b) serves to dilute the voting power of the electorate who ...


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