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February 12, 1986

WILLIAM R. DAVIS, Secretary of the Commonwealth of Pennsylvania; RICHARD ANDERSON, Bureau of Legislation, Commissions and Elections; MARGARET TARTAGLIONE, MARION TASKO and JOHN KANE, Commissioners of the City of Philadelphia

The opinion of the court was delivered by: SHAPIRO



 This action is before the court following a final hearing. The court's earlier order granting the plaintiffs preliminary relief was vacated by the Court of Appeals on November 27, 1985, 778 F.2d 140. Plaintiffs contend that Act 190, 25 P.S. § 2872.1 ("Act 190"), enacted by the Pennsylvania General Assembly to solve the "ballot clutter" problem in Democratic Party primary elections in Philadelphia is unconstitutional as applied to the Consumer Party and its members. Act 190 markedly increased the number of signatures necessary to secure a place on the primary ballot of a political party.


In passing Act 190, the legislature unwittingly but effectively barred political parties with few registered members from nominating candidates for the primary election. Moreover, because primary nomination is the only route available for members of political parties to attain general election ballot access, 25 P.S. § 2862, small parties, unable to nominate candidates for the general election ballot, are deprived of meaningful participation in the political process.


This action was brought in the district court for the Eastern District of Pennsylvania by the Consumer Party and its members (appellants). The complaint alleges that Act 190 deprives appellants of a primary election and that, in conjunction with other provisions of the Election Code, deprives them of general election ballot access, all in violation of appellants' first amendment rights.

 Consumer Party v. Davis, 778 F.2d 140, 142 (3d Cir. 1985) (footnote omitted).

 After an evidentiary hearing and argument on plaintiffs' motion for a preliminary injunction prohibiting the application of Act 190 to the Consumer Party, the court found that while Act 190 might be constitutional alone, the Election Code as a whole now required the Consumer Party to nominate by primary but, because of Act 190's raised signature requirements, made it effectively impossible for Consumer Party candidates to appear on either the primary or general election ballots. A political body not qualifying for party status would find it much easier to place candidates on primary and general election ballots. Thus, the Consumer Party's success in achieving political party status resulted in its greater difficulty in electing candidates. The court found that this electorial scheme violated the rights of plaintiffs. See Williams v. Rhodes, 393 U.S. 23, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968).

 This court then applied the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780, 789, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983), and found that:


1. The plaintiffs had demonstrated a high probability of success on the merits because it appeared clear that Consumer Party candidates were effectively denied all access to the general election ballot because of the increased signature requirements imposed by Act 190 in violation of the Constitution.


2. There was no constitutional right to a primary, and Pennsylvania's primary requirements were not so burdensome that they impermissibly discriminated against a small or new political party if and only if there were ballot access in the general election.


3. There was an important public interest in allowing the Pennsylvania state legislature, within constitutional bounds, to alleviate so-called "ballot clutter."


4. Increasing the number of signatures required for a primary ballot position did not constitute irreparable harm only if there was available a form of relief less intrusive to the state electoral scheme than invalidating signature requirements for primary nominations.

 The court then considered four alternative forms of relief that might be afforded the Consumer Party to ensure its candidates access to the general election ballot:


i. Invalidating Act 190, at least for the Consumer Party, and reinstating former signature requirements to allow the Consumer Party to nominate its candidates at the primary election on May 21, 1985.


ii. Upholding Act 190 but invalidating 25 P.S. § 3155, at least for the Consumer Party, and permitting the Consumer Party to nominate the individual receiving the highest number of write-in votes on the primary ballot.


iii. Upholding Act 190 but invalidating 25 P.S. § 2862, at least for the Consumer Party, and permitting candidates to be nominated at party conventions.


iv. Upholding Act 190 but invalidating 25 P.S. § 2862 and interpreting § 2911(e)(6) and § 2936, at least for the Consumer Party or any party unable to obtain the required number of signatures in the primary election, and permitting that party to have access to the general election ballot in the same manner as a political body without requiring its members to resign their party membership.

  The court found that providing the Consumer Party political body status for nomination purposes only was the most appropriate court-enforced remedy. The Consumer Party had not then attempted to use the political body nominating method but its availability as a solution was the underlying predicate to the court's refusal to enjoin Act 190 as unconstitutional. Although the court denied plaintiffs' motion for a preliminary injunction to prohibit the enforcement of Act 190 as to the Consumer Party, it retained jurisdiction to ensure that members of the Consumer Party had access to the general election ballot through the political body rather than the political party nominating procedure. However, nothing in the court's action was intended to effect a change in the then status of the Consumer Party as a political party. The defendants were enjoined from removing the Consumer Party name from the primary election ballot in the 1985 Spring Primary or preventing party members from voting by write-in or sticker.

 However, the Court of Appeals concluded that the district court's chosen remedy was "of at least doubtful fidelity to the legislature's intent, contains serious vagueness problems, and may be unduly intrusive." 778 F.2d at 148. In setting aside the district court order, the Court of Appeals stated,


The district court must, at all events, hold a final hearing at which the parties will develop a fuller record and, perhaps, suggest a better solution. As the primary election machinery will soon come into gear, we expect that the district court will immediately commence a hearing and make such factual findings as are necessary for a final order to be entered. Assuming that its earlier constitutional findings are not at issue -- and neither party has challenged them on appeal -- the district court would then select an appropriate remedy.

 778 F.2d at 148 (footnote omitted).

 Accordingly, this court ordered that the evidence presented at the hearing on preliminary relief would be incorporated into the record for purposes of final judgment and scheduled a further evidentiary hearing and final argument. All of the parties originally declined the opportunity to present additional evidence at the final hearing. At the insistence of the court, because the original hearing was confined almost exclusively to the Consumer Party's problems incident to the 1985 Spring Primary in Philadelphia County, plaintiffs offered brief testimony on the state-wide impact of Act 190 and the defendants offered current party registration figures. Plaintiffs called plaintiff Max Weiner to testify briefly on the Consumer Party's current registration and ability to nominate candidates outside of Philadelphia. Plaintiffs also referred to registration figures submitted by exhibit at the hearing on preliminary relief, now incorporated as evidence for purposes of a final adjudication.

 Plaintiffs then proposed that the court make findings of fact and conclusions of law as set out in the district court opinion: Consumer Party v. Davis, 606 F. Supp. 1008, 1010-1020 (E.D.Pa. 1985). Defendants, contrary to the assumption of the Court of Appeals, refused to concede the unconstitutionality of Act 190, even as to the Consumer Party, but they offered no evidence or argument sufficient to convince the court that Act 190 is constitutional as applied to the Consumer Party.

 Findings of Fact

 Plaintiffs, the Consumer Party and several of its officers, candidates and members, seek preliminary and permanent injunctive and declaratory relief prohibiting the enforcement of Act 190 of 1984, 25 P.S. § 2872.1, against the Consumer Party.

 Plaintiffs contend that the challenged state legislation, substantially increasing the number of signatures required to nominate candidates in the primary election, unconstitutionally deprives the Consumer Party of the right to participate in elections.

 Defendants City and Commonwealth have responded that the Consumer Party has or will have a sufficient number of registered party members to place candidates for primary nomination in the Consumer Party name or to write them in on the primary ballot; if the number of registered party members is insufficient for these purposes, defendants state that Consumer Party members and supporters can write-in their preferred candidates on the general election ballot.

 The Pennsylvania Election Code, 25 P.S. § 2600 et seq., establishes a two-tiered system of political associations for electoral purposes: political parties and political bodies. A state-wide political party is defined as an organization polling in the state as a whole, and in each of at least ten counties, not less than two percent of the largest entire vote cast for any state-wide candidate elected in the preceding general election, 25 P.S. § 2831(a); a political body is any other political association which nominates candidates for general elections. 25 P.S. § 2831(c). Any party or body, one of whose candidates polled at least five percent of the largest entire vote cast for any county candidate elected at either the general or municipal election preceding the primary, is a political party within that county. 25 P.S. § 2831(b).


As noted by the Court of Appeals,


There are several advantages to party status. For example, parties, but not bodies, are listed on all voter registration forms. Parties can designate candidates by certification in special elections, whereas bodies must use the cumbersome signature-gathering process to nominate candidates for such elections. Parties also enjoy much more prestige in the eyes of the media and public. The most significant difference between parties and bodies, however, is the method by which they nominate candidates for the general election.

 778 F.2d at 142.

 Political parties must nominate all their candidates for office at primary elections, 25 P.S. § 2862, at which only those registered as members of a political party may vote, 25 P.S. § 2832. *fn1" The candidates who win a party primary are that party's nominees for office at the next general election.

 In order to qualify for a place on a party's primary ballot, a candidate must file a nomination petition signed by a requisite number of registered members of that party. 25 P.S. § 2868. These nominating petitions must be circulated by party members and each circulator must file an affidavit stating that each signer "signed with full knowledge of the contents of the petition." 25 P.S. § 2869. Although one signing a primary nominating petition must be a registered party member, a candidate need not be a party member unless he or she is seeking party office or selection as a party delegate to a nominating convention. 25 P.S. § 2868. Title 25 P.S. § 2872, the predecessor to Act 190 of 1984, required, inter alia, primary nominating petitions to be signed by the following number of registered party voters: President and United States Senate - 100 in each of at least ten counties State-wide Office - 100 in each of five counties Representative in Congress and State - 200 Senator State Legislature - 100 City-Wide Office (first class cities) - 100


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