No. 50 E.D. Appeal Docket 1982, Appeal from the Order of the Commonwealth Court at No. 1403 C.D. 1982, filed July 15, 1982.
Louis W. Fryman, Fox, Rothschild, et al., Philadelphia, for appellants.
Gregory M. Harvey, Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Hutchinson, J., concurs in the result. Nix and McDermott, JJ., dissent. Larsen, J., dissents on the basis of denial of equal protection and on the basis of In re Nomination Papers of Smith,
Appellant T. Milton Street is an independent candidate in this year's general election for the office of Representative in Congress from the Second Congressional District of Pennsylvania, having been nominated by nomination papers filed on May 25, 1982, by the "Milton Street Party," a political body.*fn1 Subsequent to appellant's nomination, the candidate of the Republican Party who had been nominated in the May 18th primary election withdrew his candidacy. On June 10, 1982, a formal notice of withdrawal was filed with the Secretary of the Commonwealth and a substituted nomination certificate was filed by the Republican Party naming appellant Street as the Republican Party's substitute nominee.*fn2
Appellee William H. Gray, III, who is the incumbent and nominee of the Democratic Party, filed a petition with the Commonwealth Court challenging the validity of the substituted nomination certificate and requesting that the certificate be set aside. After a hearing, the Commonwealth Court (MacPhail, J.) entered an order granting the requested relief.*fn3 This appeal followed. See 42 Pa.C.S. § 723(a).
Throughout these proceedings appellants*fn4 have conceded that the Republican Party's substituted nomination certificate, which names appellant Street as the party's nominee notwithstanding his separate nomination for the same office as a candidate of a political body, is in violation of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, § 979, as amended, 25 P.S. § 2939. Section 979, which
governs the filling of vacancies created by the withdrawal of a party's candidate in a general election, provides in pertinent part:
"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: Provided, 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."
On this appeal, as in the Commonwealth Court, appellants seek to avoid the prohibition of the governing statute on two constitutional grounds. First, appellants argue that, notwithstanding the admitted constitutionality of the statutory prohibition against a party's substitute nomination of "any person who has already been nominated by any political party . . . for the same office," the Legislature may not constitutionally bar a party's substitute nomination of "any person who has already been nominated . . . by any other political body for the same office." According to appellants, "[b]y treating political parties and political bodies identically, the prohibitions of Section 979 are 'over-inclusive' and hence violative of the Equal Protection Clause of the Fourteenth Amendment." Second, appellants argue that application of the challenged provision of the statute to the Republican Party in the Second Congressional District unconstitutionally burdens the First Amendment associational rights of the Republican Party and its members to nominate the candidate of their choice. In appellants' view, because a substantial majority of the voters in the Second Congressional
District are enrolled in the Democratic Party, the statutory prohibition has "the impermissible effect of fostering the domination of [the Democratic] party" by "prevent[ing] any fusion of an independent candidate and [the Republican] party." As we agree with the Commonwealth Court that appellants' claims do not ...