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October 8, 1991


The opinion of the court was delivered by: McCLURE, District Judge.



Plaintiffs John F. Perry, M.D. and U.S. Taxpayers Party of Pennsylvania ("U.S. Taxpayers")*fn1 challenge the constitutionality of ballot access requirements imposed on independent party candidates in Senatorial elections by sections 2776 and 2911*fn2 of the Pennsylvania Election Code.*fn3 Perry attempted to qualify for a position on the ballot as a candidate of the U.S. Taxpayers party in the November 5, 1991 special election to fill the unexpired term of former United States Senator John Heinz who died tragically in a mid-air collision on April 4, 1991, Defendants Robert N. Grant, Acting Secretary of the Commonwealth of Pennsylvania and William S. Boehm, Commissioner of the Bureau of Elections, administer Pennsylvania's election code. Grant is the acting chief election officer of Pennsylvania and is charged by law with the responsibility for receiving and accepting nomination papers for federal and state offices, 25 P.S. § 2621.

Section 2776 governs special elections conducted to fill a vacancy in the office of United States Senator from Pennsylvania*fn4, and operates in tandem with section 2911 to require independent party candidates seeking a position on a special election ballot to file nomination papers*fn5 bearing signatures of at least two percent of the qualified electors who voted for the winning candidate in the last state-wide election (the "two-percent rule").*fn6 The nomination papers must be filed at least sixty days before the election, in this case, on or before September 6, 1991.*fn7 Nominating papers may be signed by registered voters of any party. 25 P.S. § 2911.

Under these provisions, Perry was required to file nomination papers bearing the signatures of at least 41,305 qualified electors on or before September 6, 1991. This number was calculated by the Commonwealth and represents two percent of the total number of votes cast for Governor Casey in the 1990 gubernatorial election. Perry failed to obtain the requisite number of signatures,*fn8 and plaintiffs now challenge the constitutionality of the two-percent rule as a bar to Dr. Perry's inclusion on the November, 1991 special election ballot.

Plaintiffs allege that the two-percent rule violates the First, Fourteenth and Seventeenth Amendments by abridging the rights to freedom of speech and association, due process and equal protection. They contend that the following circumstances render the two-percent rule unconstitutionally burdensome in this case: (1) the brief time allowed for signature-gathering (Perry had from April 9, 1991, the date Governor Casey issued the Writ of Election, to the September 6, 1991 cutoff date to obtain the necessary signatures.); (2) the unusually high number of signatures required due to Governor Casey's having won by an overwhelming majority in 1990; (3) interference with signature-collecting efforts allegedly caused by a stay imposed in June and July 1991 by Judge Cahn, the United States District Judge for the Eastern District of Pennsylvania, in Trinsey v. Commonwealth of Pennsylvania, 766 F. Supp. 1338 (E.D.Pa. 1991), (Cahn, J.), rev'd, 941 F.2d 224 (3d Cir. 1991), (Sloviter, J.); and (4) non-applicability of the rule to candidates of the Republican and Democratic parties.

To redress these alleged constitutional violations, plaintiffs seek a declaratory judgment*fn9 declaring the two-percent rule unconstitutional. They also seek preliminary and permanent injunctions restraining defendants from enforcing the two-percent rule and directing that the signatures and nomination papers filed by plaintiffs be accepted and deemed sufficient to comply with the constitutional intent of the legislature under section 2776. In the alternative, they seek a two-month extension of the pre-election signature-gathering period to allow them time to gather the additional signatures they will require if the two-percent rule is upheld.

Before the court is a Rule 12(b)(6) motion to dismiss plaintiffs' complaint, filed by defendants on September 16, 1991. Cognizant of the need for urgency in view of the impending election, we expedited the briefing schedule and are now in a position to rule on defendants' motion. For the reasons discussed below, we will enter an order dismissing this action.


Rule 12(b)(6) motion

A complaint may not be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The court must accept all material allegations in the complaint as true and construe them in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Johnsrud v. Carter, 620 F.2d 29 (3d Cir. 1980); and Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D.Pa. 1985) (Rambo, J.). Although the complaint is to be liberally construed in favor of the plaintiff (Fed.R.Civ. 8(f)), the court does not have to accept every allegation as true. Conclusory allegations of law, unsupported conclusions and unwarranted inferences need not be accepted as true. Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 101-02.

Constitutionality of the two-percent rule

Special election procedures are constitutional if they serve a "legitimate" governmental interest. Trinsey v. Commonwealth of Pennsylvania, 941 F.2d at 233-34, citing Rodriguez v. Popular Democratic Party, 457 U.S. 1, 12, 102 S.Ct. 2194, 2201, 72 L.Ed.2d 628 (1982).*fn10 States may impose reasonable restrictions to limit access to the ballot and control the number of candidates vying for a position in the interest of guarding against splintered parties, preserving the integrity and stability of the political system, preventing unrestrained factionalism, avoiding voter confusion, preventing frivolous or fraudulent candidacies and assuring that the victor is the choice of a majority or at least a strong plurality of voters without incurring the expense and burden of conducting a runoff election. Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972) and Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). Cf. Williams v. Rhodes, 393 U.S. 23, 24, 89 S.Ct. 5, 7, 21 L.Ed.2d 24 (1968), (ballot qualifications so onerous as to make it "virtually impossible" for independent parties to qualify violate the Equal Protection Clause). States are not required to make a "particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of reasonable restrictions on ballot access." Munro v. Socialist Workers Party, 479 U.S. 189, 194-95, 107 S.Ct. 533, 537, 93 L.Ed.2d 499 (1986). States are not constitutionally required to succumb to pressures by potential candidates for unrestrained or instantaneous ballot access at the expense of endangering such interests. Storer v. Brown, 415 U.S. 724, 732-36, 94 S.Ct. 1274, 1280-82, 39 L.Ed.2d 714 (1974) and Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1974).

State legislatures are authorized by the Seventeenth Amendment to fill a vacancy in the state's representation in the United States Senate by popular election.*fn11 As phrased and interpreted, the Amendment grants reasonable discretion to the legislature to determine the "timing and manner" of vacancy elections and candidate selection procedures. In reviewing the constitutionality of such provisions, the courts accord considerable deference to the judgment of the legislature, since it is its function, not the court's, to weigh competing considerations and to adopt the measures it deems most appropriate to serve legitimate governmental interests. Trinsey, ...

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