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April 22, 1982


65 Pa. Commw. 620.

Opinion by Judge MacPhail. Dissenting Opinion by Judge Blatt.

Author: Macphail

[ 65 Pa. Commw. Page 632]

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 before Judge Genevieve Blatt 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, 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. In a decision issued April 6, 1982, Judge Blatt dismissed the objections to the petitions, finding that said geographic distribution requirement was unconstitutional. Reargument before the present panel of

[ 65 Pa. Commw. Page 633]

    judges was granted, and we now vacate the prior decision of this Court and uphold the objections to the petition.

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. 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.*fn4 It is argued that these decisions and the rationale employed therein are equally applicable here. While we cannot deny that these cases evidence the prevailing view of the courts in regard to county distribution requirements, see, e.g., McCarthy v. Garrahy, 460 F. Supp. 1042 (D. R.I. 1978); Communist Party of Illinois v. Ogilvie, 357 F. Supp. 105 (N.D. Ill. 1972); Socialist Workers Party v. Hare, 304 F. Supp. 534 (E.D. Mich. 1969), we believe the present situation is distinguishable from these cases.

[ 65 Pa. Commw. Page 634]

We feel that it is important initially to understand the effect of the Pennsylvania election laws upon the rights of the state's voting populace. A review of the Pennsylvania Bureau of Elections' compilation of the number of registered voters for the November 1981 election reveals that the four counties with the highest number of registered voters have approximately 41.8% of the registered voters in this state, not even a majority. The total number of signatures required for a candidate to be placed on the ballot is 500, or .00878% of the registered voters. Furthermore, prospective candidates for judicial election may cross-file and seek nomination of multiple parties.*fn5

Finally, prospective candidates not seeking nomination for a political party may, through the use of Section 951 of the Election Code, 25 P.S. § 2911, obtain ballot access by getting signatures, without any geographic strictures, equal to two percent of the largest entire vote cast for any elected candidate in the state at large in the last statewide election.

With these facts in mind, we will proceed to examine the development of the equal protection clause as it applies to election cases. The first U.S. Supreme Court case to recognize an equal protection violation in county distribution requirements was Moore v. Ogilvie. In Moore, the Court was faced with a challenge by independent candidates for President to an Illinois law which required 25,000 signatures for attaining a position on the general election ballot, subject to a proviso that there be at least 200 signatures from each of 50 of the state's 102 counties. The population disparity in Illinois was such that 93.4% of the population resided in the 49 most populous counties. The Court found such a scheme unconstitutional.

[ 65 Pa. Commw. Page 635]

That decision has been followed in a number of cases since; for example, striking down a New York law requiring at least 50 signatures from every county in the state. Socialist Workers Party v. Rockefeller, 314 F. Supp. 984 (S.D. N.Y.) aff'd, 400 U.S. 806 (1970), an Ohio statute requiring independent candidates to have 200 signatures from each of thirty of the state's eighty-eight counties, Socialists Labor Party v. Rhodes, 318 F. Supp. 1262 (S.D. Ohio 1970) aff'd, 409 U.S. 942 (1972) and a statute in Michigan requiring new political party candidates to not only obtain a certain percentage of signatures of the state, but also to obtain 100 signatures from each of ten counties, with a further restriction that not more than 35% of the signatures could come from any one county. As is readily apparent in these cases, much of the concern about these statutes is the veto power given to a minority of the state population over the majority's desires. This "veto" aspect was highlighted by the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976), where that Court, in upholding a portion of the federal campaign financing law requiring candidates to run in 20 state primary elections to receive primary election funds, noted that Moore v. Ogilvie was distinguishable in that only 7% of Illinois voters could have blocked a candidate from qualifying, even though they could not have defeated the candidate in the general election. 424 U.S. at 106 n. 144. Similarly, the statute ...

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