and rejected in Sagan, 542 F. Supp. at 882. Commonwealth officials in Sagan argued that the prohibition against cross-filing by legislative and executive candidates serves to protect the political party system and to ensure adversarial elections. The court found that these considerations had no relevance with respect to judicial candidates since judges do not represent the cause of a particular constituency. Id. This court agrees with the Sagan analysis.
Plaintiff alleges that cross-filing discourages persons from running for judicial office because cross-filing makes the process more difficult, cumbersome and expensive. No case law or further factual basis is cited in support of this charge. Again, defendant contests plaintiff's standing because she has failed to allege that she is a candidate for judicial office or that she even considered candidacy and thus she could not possibly have suffered any injury from cross-filing. Even if the claim is addressed, defendant argues that it is frivolous on its face because a judicial candidate need not cross-file if he or she feels it is too difficult. The court agrees with this statement and further notes that plaintiff failed to offer any evidence about filing fees and how they impact on judicial candidates. The court therefore finds insufficient evidence to consider plaintiff's "expense" argument.
C. The Combined Impact of Cross-Filing and Limited Voting
Plaintiff contends that the combined impact of cross-filing and the limited voting procedure effectively disenfranchises electors who did not vote in the primary. In support of this contention, plaintiff points to the 1979 election results for Commonwealth Court judges in which three judges were to be elected. There, Judge Craig won both parties' nomination while Judge McPhail won the remaining Republican nomination and Judge Williams won the remaining Democratic nomination. Plaintiff concludes that since only three names appeared on the municipal election ballot for three vacancies, electors who did not vote in the primary or independents who could not vote in the primary lacked a meaningful choice at the municipal election. Defendant argues that in the municipal election each voter is free to reject all or a portion of the individuals who won nominations and to write in the name or names of other persons and thus no disenfranchisement occurs. The court agrees with the defendant.
While the first amendment right to vote has been interpreted as guaranteeing an effective vote, Rhodes, 393 U.S. at 30, 89 S. Ct. at 10, it has not been held to ensure that one's candidate is entitled to win election. Furthermore, plaintiff's efforts to construct a disenfranchisement argument on the basis of persons who failed to vote in the primary lacks merit. The court is unaware of any case holding that the first amendment entitles a qualified voter who failed to vote in a primary to challenge the slate of candidates presented at the municipal election. As for independents, the inability of independents to vote in primary elections is not before the court and thus any disenfranchisement they may suffer based on their inability to participate in the primary is not for this court to resolve. They, like the voters who could have but did not vote in the primary are still able to exercise their right at the municipal election.
Defendant in his brief justifies the totality of the effect of limited voting and cross-filing when viewed together. See Williams, 393 U.S. at 34, 89 S. Ct. at 12. Defendant argues that retaining cross-filing minimizes the effects of partisan politics in judicial elections. This procedure blurs party identification by permitting bi-partisan support of candidates and party nomination of a candidate who is not a member of that party. Thus, the emphasis is on who the party thinks will be the best judge rather than party identification.
To the extent, however, that the General Assembly permitted partisan politics to remain a factor in Commonwealth Court elections, defendant contends that the legislature chose to minimize its impact through the limited voting procedure. This procedure encourages the election of minority party judges. The legislature's concern for non-partisanship, or at least partisan balance, on the Commonwealth Court alone merely reflects the previously described unique nature of the court. This court finds no constitutional impairments from the combined effect of limited voting under § 3133 and cross-filing under § 2870(f).
An appropriate order will be entered.