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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 here presently under review does not allow a minority to frustrate the majority will. Rather, any candidate who truly cannot muster 100 signatures from one other county besides the four largest (Allegheny, Delaware, Montgomery and Philadelphia), particularly when the option to cross-file exists, obviously does not have the majority support necessary to win a general election.

[ 65 Pa. Commw. Page 636]

It is, we believe, somewhat beside the point that the smallest five counties could effect a nomination; that may only speak to the need for further strengthening of the election rules. Voters in any five counties could effect a nomination and it would take the combined action of 63 counties to prevent a nomination.*fn6

Our examination of the myriad of cases in this regard leads us to believe that the case of Zautra v. Miller, 348 F. Supp. 847 (1972) provides us with the proper method of analysis in regard to the distribution requirements here at issue. In Zautra, a statute in Utah requiring 500 signatures, with at least 10 signatures of registered voters from each of 10 of the state's 29 counties, was challenged. The law only applied to groups who sought to qualify as a political party, and any individual could gain an independent spot on the ballot by gathering 300 signatures state-wide without geographic restriction. The Court saw this statute as placing only a minimal burden upon prospective candidates, though in theory a disproportionate weight for certain voters did exist. The question, as phrased by the Court, was "whether the Fourteenth Amendment mandate[d] the elimination of even minimal geographic burdens of conceivably discriminating effect." Id. at 850. The Court went on to conclude that in a case where the franchise was affected "somewhat obliquely" the guiding review standard was as enunciated in the case of Bullock v. Carter, 405 U.S. 134 (1972), where the Supreme Court enunciated a standard that a discriminatory law must have a real and appreciable impact on voters' rights before the strict scrutiny test of reasonable necessity

[ 65 Pa. Commw. Page 637]

    would be applied in the challenge, 405 U.S. at 144. A law with no real and appreciable impact would only require "rational basis" scrutiny. The Court in Zautra believed that the minimal signature requirement, combined with the independent access provided under the law, had no real impact and concluded that the law need only pass a "rational basis" analysis and thus upheld the statute's constitutionality.

We likewise believe that the minimal signature requirement imposed, combined with the cross-filing or independent access available to candidates, has no "real and appreciable impact" on the franchise rights of voters in Pennsylvania and thus we find the state's interests of ensuring serious candidacies, ensuring manageable ballot size, and ensuring that prospective candidates have a significant modicum of support provide a rational basis for the challenged law.*fn7

Further, the presently unanimous view of courts throughout the land provides yet another reason for

[ 65 Pa. Commw. Page 638]

    not finding the statute here at issue unconstitutional in the present context. The one person-one vote principle, upon which the candidate relies, as initially announced in Baker v. Carr was designed to remedy the unequal representational rights of voters. "The first principle inherent in our republican form of government is that individual citizens submit to rule by legislative fiat enacted by a majority of a popularly elected legislative body working within a constitutional framework. When the representatives to that legislative body are malapportioned among the several districts within the political unity, then the voting strength of the individual citizens in these subdivisions is of unequal weight." Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 1960), appeal dismissed, 385 U.S. 3 (1966).

[ 65 Pa. Commw. Page 639]

At issue in this case is the nomination petition for judicial office. "Manifestly, judges . . . are not representatives in the same sense as are legislators or the executive. Their function is to administer the law, not to espouse the cause of a particular constituency." Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964). The numerous courts which have been presented with judicial election cases are in rare unanimity on this point. Judicial officers are not subject to the one person-one vote principle and therefore a state's choice regarding the method of electing its judiciary is not subject to an equal protection challenge.*fn8 See, e.g., Voter Information Project Inc. v. City of Baton Rouge, 612 F.2d 208 (1980); Gilday v. Board of Elections, 472 F.2d 214 (1972); Scott v. Hill, 449 F.2d 634 (1971); Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd. mem., 409 U.S. 1095 (1973); Holshouser Page 639} v. Scott, 335 F. Supp. 928 (M.D. N.C. 1971), aff'd mem., 409 U.S. 807 (1972); Concerned Citizens v. Pine Creek Conservancy District, 473 F. Supp. 334 (S.D. Ohio 1977); Kentucky State Bar Ass'n. v. Taylor, 482 S.W.2d 574 (Ky. 1972); Cox v. Katz, 22 NY2d 903, 241 N.E.2d 747 (1968).

As we have previously recognized, the one person-one vote provisions for nomination petition cases have followed, and relied upon, the reapportionment types of cases. See Moore v. Ogilvie. And in view of the fact that reapportionment has not been required in the judicial election process*fn9 then we fail to perceive how one person-one vote can be applied to judicial nominating petition cases.*fn10

We wish, finally, to emphasize two other problems which would attend a holding of unconstitutionality. First of all there is the matter of this candidate being placed on the present ballot. The objector, relying upon the law as it existed prior to this constitutional challenge, had no reason to assert challenges to any other signatures in light of the fact that there was stipulated that the candidate had only four

[ 65 Pa. Commw. Page 640100]

signature counties. Furthermore, any other candidates have apparently complied with the law in obtaining ballot access.

Secondly, we would like to point out a possible problem with a 500 signature statewide requirement. We have previously discussed the 2% statewide requirement for independent candidacies. And undoubtedly this requirement would generally pass constitutional muster, see Jenness v. Fortson, 403 U.S. 433 (1971). However, we perceive grave constitutional problems concerning the rationality of a system whereby prospective party candidates need only obtain 500 statewide signatures and independent candidates need 2% of the largest number of votes cast in the prior state election.*fn11

We therefore hold that the candidate has failed to sustain his heavy burden of showing that Section 912(b) is unconstitutional and will therefore order candidate Cavanaugh's name not be certified.

Dissenting Opinion by Judge Blatt:

I respectfully dissent.

For the reasons set forth in the Memorandum Opinion filed with the Order of April 6, 1982 in this case, I would continue to hold that the geographic distribution requirement of 25 P.S. § 2872(b) is unconstitutional and that the name of James R. Cavanaugh should be placed on the Democratic ballot for the office of Justice of the Supreme Court of Pennsylvania for the primary election to be held on May 18, 1982.

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