On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 91-02749.
Sloviter, Chief Judge, Greenberg and Seitz, Circuit Judges.
Facts and Procedural History
John Heinz, a United States Senator from Pennsylvania, died on April 4, 1991 in an airplane accident. A Pennsylvania statute, 25 Pa. Stat. Ann. § 2776 (Purdon 1991), sets forth the procedure which should be applied to fill a senatorial vacancy. That statute provides, inter alia, that the Senator's unexpired term is to be filled by a special election to be held at the time of the next general or municipal election occurring at least 90 days after the happening of the vacancy. The Governor is obliged to issue writs of election within 10 days after the vacancy happens.
The statutory provision of principal relevance to the issues in this appeal provides: "Candidates to fill vacancies in the office of United States Senator shall be nominated by political parties, in accordance with the party rules relating to the filling of vacancies, by means of nomination certificates . . ." to be filed at least 60 days prior to the special election. Id. The "political parties" who are entitled to nominate their candidates in this manner are those whose candidate for any office in the last general election received at least two percent statewide and two percent in at least ten counties of the largest vote cast in the state for any elected candidate. Id. § 2831(a). The Democratic and Republican parties are the only parties which fit this definition at least at this time. Individuals or candidates of other political parties must satisfy the state's requirements as to nomination papers in order to appear on the ballot for the special election. Id. § 2911(a)-(d). Section 2776 provides that the Governor may make a temporary appointment to fill the vacancy until the special election.*fn1
In accordance with that statute, the Governor of Pennsylvania, Robert P. Casey, issued a writ of election declaring a special election for November 5, 1991; on May 13, 1991, Governor Casey named Harris Wofford as a temporary appointment to fill the senatorial vacancy.
On April 29, 1991, John S. Trinsey, Jr. filed a complaint in the United States District Court for the Eastern District of Pennsylvania, alleging that he wishes to become a candidate to fill the vacancy caused by Senator Heinz's death, and asserting that section 2776 violates the Fourteenth*fn2 and the Seventeenth Amendments of the United States Constitution because it authorizes nominations of candidates to fill senate vacancies by political parties rather than by primary elections. He sought a declaration that section 2776 is unconstitutional. By motion, he sought injunctive relief directing that he and others be placed on the ballot at the November election, and that Wofford be restrained from serving as Senator and that the appointment be set aside. The defendants, the Commonwealth of Pennsylvania, the Department of State, Board of Elections, the Governor, and the Secretary of the Commonwealth, opposed Trinsey's request for preliminary relief and moved, inter alia, to dismiss the complaint for failure to state a claim and as barred by the Eleventh Amendment, U.S. Const. amend. XI.
The district court scheduled a hearing on the motion for preliminary injunction on May 29, 1991. No party offered evidence and instead the parties presented oral argument. Following supplemental submissions on legal issues requested by the district court, the court denied both Trinsey's request for preliminary injunction and the defendants' motion to dismiss. It issued a final judgment on the merits declaring section 2776 to be unconstitutional, essentially on the ground that the statute violates the Seventeenth Amendment, U.S. Const. amend. XVII, because it does not provide for a primary election before the special election to fill a Senatorial vacancy.
The Commonwealth defendants appealed, as did Pennsylvania Senator Arlen Specter who, together with Republican Party officials and the Republican State Committee of Pennsylvania, had been given leave to intervene by the district court. On appeal, we granted leave to the Pennsylvania Democratic State Committee and its officials to intervene, and granted leave to the Committee of Seventy to file a brief amicus curiae. Because appellee Trinsey is appearing pro se and is not an attorney, it appeared to the court that the interests of informed decisionmaking required that the position adverse to that of appellants be fully and forcefully advanced, and we entered an order appointing Professor Laura E. Little as amicus curiae to present an appropriate response to appellants' position.*fn3 We expedited the appeal.
The District Court Opinion
The district court's analysis began with the undisputable proposition that the constitutional right of the citizens of Pennsylvania to vote for their national representatives has its foundation in the Qualifications Clauses contained in Article I of the Constitution, U.S. Const. art. I, § 2, cl. 2, and the Seventeenth Amendment. The Qualifications Clause of Article I applies only to the election of members of the House of Representatives*fn4 and thus is inapplicable here. Instead, we are concerned with the Seventeenth Amendment, which contains provisions, including the Qualifications Clause applicable to election of Senators, which were designed to replace the original constitutional provision for election of United States Senators by state legislatures*fn5 with a provision requiring popular election of Senators.
The district court analyzed the legislative history of the Seventeenth Amendment and numerous federal cases arising under the First, Fourteenth and Fifteenth Amendments. The district court stated that "the [Supreme] Court has recognized that the Constitution guarantees the franchise at all stages of the electoral process, including the nomination stage." Typescript Op. at 9. The court noted that the right to vote is fundamental and is protected against private as well as state interference. The court recognized, however, that the issue whether the right to vote must be protected at the nomination stage has not been squarely presented before. Indeed, it concluded from the Supreme Court precedent that "it is clear that the states could choose to run general elections [without] the prior selection of major political party nominees by primary or otherwise." Id. at 6 (citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 218, 93 L. Ed. 2d 514, 107 S. Ct. 544 (1986)). Nonetheless, it held that "precedent requires popular participation at the nomination stage" preceding a special election to fill a Senatorial vacancy, apparently because Pennsylvania had chosen to use the primary system for selection of nominees by political parties in its general elections. Id. at 13.
Having thus determined that Pennsylvania's statute, section 2776, infringes upon the fundamental right to vote, the court applied strict scrutiny review under which the statute could be upheld only if the Commonwealth showed that it advances a compelling state interest and is narrowly tailored to serve that interest. The Commonwealth proffered four state interests: limiting the names on the ballot, guarding against splintered parties and an unstable political system, preventing clogging of the election mechanism, and shortening the length of service of a non-elected Senator. The court held that the first three cannot justify the statute because they would apply equally in general elections, for which Pennsylvania does provide a primary. The court recognized that at least the last of the state interests proffered had some merit, but it concluded that Pennsylvania's system was not narrowly tailored to serve that interest.
Finally, the district court reviewed the vacancy proviso of the Seventeenth Amendment authorizing the state legislature to empower the executive to make temporary appointments to fill the senatorial vacancy until the special election but reasoned that this proviso did not authorize the state legislature to commit what the court had already determined to be unconstitutional, i.e., to permit the nominations for candidates to fill senatorial vacancies without conducting a popular primary. The court found it significant that the vacancy proviso specifies that "the people" must elect the new Senator. U.S. Const. amend. XVII.
The court concluded that although the Governor's temporary appointment of Senator Wofford is constitutional and that Trinsey could not be included as an independent candidate in the special election without meeting Pennsylvania's requirements for third-party candidates, section 2776 violates the Seventeenth and Fourteenth Amendments.
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 (1988). This court has jurisdiction over the appeal from the final decision of the district court issuing a declaratory judgment pursuant to 28 U.S.C. § 1291 (1988). The issue before us is one of law and our review is plenary.
A. The Seventeenth Amendment
Although the appellants, intervenors and amici curiae opposing the decision of the district court (referred to jointly as appellants) have filed numerous briefs, their principal position does not differ. Essentially, they argue that the district court erred in interpreting the Supreme Court precedent and the legislative history of the Seventeenth Amendment to hold that the Constitution requires Pennsylvania to hold a ...