No. 3 M.D. Misc. Dkt. 1983
Karen M. Balaban, Harrisburg, A. Richard Gerber, Penllyn, Nancy J. Hopkins, Oreland, for petitioner.
LeRoy S. Zimmerman, Atty. Gen., Mollie McCurdy, Deputy Atty. Gen., for respondents.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a concurring opinion. Roberts, C.j., files a dissenting opinion in which McDermott, and Hutchinson, JJ., join.
Pursuant to 42 Pa.C.S.A. § 726 (1981), we assumed extraordinary jurisdiction of this petition for review brought by Edward M. Mezvinsky in the Commonwealth Court. Petitioner challenges the constitutionality of the limited voting provision of 42 Pa.C.S.A. § 3133 (1981) as in derogation of his constitutional right as an elector to elect the judges of the Commonwealth Court.*fn1
42 Pa.C.S.A. § 3133 (1981) provides:
Whenever two or more judges of the Commonwealth Court are to be elected pursuant to section 3131(c) (relating to selection of judicial officers for regular terms) at the same election, each qualified elector shall vote for no more than:
(1) one-half of the number of judges to be elected, if the total number to be elected is even; or
(2) the smallest number constituting a majority of the total number of judges to be elected, if the total number to be elected is odd.
The persons having the highest number of votes, up to the total number of judges to be elected, shall be elected.
This provision has been held to require limited voting in the primary election and in the selection of judges in the municipal election. Thiemann v. Allen, supra. Although there are three vacancies on Commonwealth Court to be filled in the municipal election of 1983, by operation of Section 3133 each political party would be limited to nominations of only two candidates, and each voter, in both the primary and municipal elections, would be limited to voting for only two candidates. Thus, as noted by Mr. Justice Nix, dissenting, in Thiemann, Section 3133 would ...