Original jurisdiction in case of In Re: Nomination Certificate of T. Milton Street as Republican Candidate for the Office of Representative in Congress From the Second Congressional District -- Objection of William H. Gray, III.
Gregory M. Harvey, Morgan, Lewis & Bockius, for petitioner.
Louis W. Fryman, Fox, Rothschild, O'Brien & Frankel, for respondents, T. Milton Street, and William Dunham and Samuel Rymer, individually and on behalf of the caucus of the City Committeemen of the Republican Party in the Second Congressional District of the Commonwealth of Pennsylvania.
Debra K. Wallet, Deputy Attorney General, with her Allen C. Warshaw, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for Commonwealth of Pennsylvania.
Judge MacPhail. Memorandum Opinion and Order by Judge MacPhail.
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On June 10, 1982 the caucus of City Committeemen of the Republican Party in the Second Congressional District (Respondents) filed a substituted nomination certificate with the Secretary of the Commonwealth which purported to nominate State Senator T. Milton Street as the Republican candidate for Representative in Congress.*fn1 A petition*fn2 to set aside that certificate has been filed with this Court averring, inter alia, that on May 25, 1982 a nomination paper was filed with the Secretary of the Commonwealth by the "Milton Street
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Party" nominating Senator Street as an independent candidate for Representative in Congress from the same Congressional District. The petition avers that that substituted nomination certificate should not have been accepted by the Secretary of the Commonwealth in light of Section 979 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2939 which reads in pertinent part as follows:
Any vacancy happening or existing after the date of the primary in any party nomination, by reason of the death or withdrawal of any candidate after nomination, or by reason of the death before or on the day of the primary election of a candidate for nomination who had received a plurality of votes of his party electors cast for the office for which he sought nomination, may be filled by a substituted nomination made by such committee as is authorized by the rules of the party to make nominations in the event of vacancies on the party ticket: Providing, however, That no substitute nomination certificate shall nominate any person who has already been nominated by any political party or by any other political body for the same office. (Emphasis added.)
In their answer to the petition before us, Respondents admit the critical factual averments but contend that the language of Section 979 emphasized in the excerpt above, is unconstitutional as applied to the circumstances of this case; more specifically, Respondents urge that that language in Section 979 violates the Fourteenth Amendment to the U.S. Constitution, U.S. Const. amend. XIV*fn3 in that it "discriminates in
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favor of major political parties and violates Respondents' rights to engage ...