The opinion of the court was delivered by: BY THE COURT; GAWTHROP
This action stems from consequences of the last-minute litigation over the reapportioning of Congressional Districts in the Commonwealth of Pennsylvania. Plaintiffs ask for declaratory relief and for a preliminary and permanent injunction, alleging that the March 10, 1992, Order of the Supreme Court of Pennsylvania,
setting forth the new Congressional District boundaries and declaring March 19, 1992, the filing deadline for signature petitions for Congressional candidates and Presidential delegates, is unconstitutional under the First and Fourteenth Amendments of the United States Constitution. After submission of briefs, oral argument, and a hearing with testimony from seven witnesses, I am convinced that the March 10, 1992, Order of the Supreme Court of Pennsylvania infringes unconstitutionally on plaintiffs' freedom of association by placing an undue burden on their efforts to get on the ballot for the primary scheduled for April 28, 1992, and I shall, therefore, grant plaintiffs' request for a preliminary injunction.
Because of population changes in the Commonwealth of Pennsylvania, documented by the decennial census, the congressional districts had to be redrawn for the 1992 primary, to be held April 28, 1992. Since, however, the Pennsylvania General Assembly could not agree on the new congressional district boundaries, litigation erupted over how these new districts were to be drawn. Litigation was still going on when candidates for the House of Representatives and party Delegates to the National Conventions were allowed to begin gathering signatures on their nomination petitions. Pennsylvania's Election Code provides that "no nomination petition shall be circulated prior to the thirteenth Tuesday before the primary, and no signature shall be counted unless it bears a date affixed not earlier than the thirteenth Tuesday nor later than the tenth Tuesday prior to the primary." 25 P.S. § 2868. The thirteenth Tuesday before the primary was January 28, 1992. On that date, since no congressional districts had yet been drawn, the Bureau of Elections, at midnight, declared that no congressional districts existed, and stayed the circulation of petitions for congressional candidates and for party presidential delegates, until the boundary lines (which, for the delegates as well, coincide with Congressional districts) were settled.
On March 10, 1992, the Supreme Court of Pennsylvania filed an order in which it adopted a reapportionment plan, recommended by President Judge Craig of the Pennsylvania Commonwealth Court, which set out the new Congressional Districts. That order was filed between 4:30 and 5:00 p.m. on Tuesday, March 10, 1992. In the Order, the Court set a revised schedule for circulating nominating petitions, providing that March 10 was the first legal day to circulate petitions and March 19, 1992 was the last day to file petitions. The petitions had to be filed by 5:00 p.m. with the Bureau of Commissions, Elections, and Legislation ("the Bureau") in Harrisburg. The Order provided that all signatures on the Nominating Petitions obtained prior to March 10, 1992, were void.
The only provision in the Order for notice of the filing deadlines was in its attached schedule. It provided that county boards of elections publish, on March 17, 1992, a notice in the newspapers, stating that candidates for Representative to Congress would be nominated and the party offices of Delegate to the National Convention would be elected on April 28, 1992. It also required that the March 17th notice specify that the Court had established a deadline of March 19, 1992 for the filing of nomination petitions for these offices. In addition, the Court ordered, by way of notice to the public, that "the Secretary of the Commonwealth shall, as soon as possible, publish in the Pennsylvania Bulletin, by the description, and if feasible, by maps, the new Congressional Districts." 22 Pennsylvania Bulletin, 1253 (March 21, 1992). (Emphasis added). The first issue of the Pennsylvania Bulletin, appearing after the March 10th order, was published on Saturday, March 14. The publication deadline for that issue was 12:00 noon, Friday, March 13, 1992. The Order, the circulation period, filing deadline, and descriptions of the Congressional Districts were not published in the Pennsylvania Bulletin until March 21, 1992. Thus, the official notice of the filing deadline was not officially published until two days after the filing deadline had come and gone.
Monna Accurti, legal assistant for the Bureau of Commissions and Elections, testified that she picked up the court's order at about 5:00 on March 10, 1992, after receiving a call that it had been filed. That evening she called the state Republican and Democratic Committees. She testified that she tried some of the Presidential candidate campaigns, but could not reach them. Some she reached on March 11th. Also on March 11th, the Bureau mailed a written notice to the Presidential candidates and to congressional candidates who had picked up signature petitions at the Bureau. She could not reach delegate candidates because they had to pick up the petitions from the presidential campaigns themselves.
Pennsylvania requires a candidate for the House of Representatives to collect 1,000 signatures and requires a candidate for Presidential delegate to obtain 250 signatures in order to get his or her name on the ballot. These signatures must be from registered voters in the party and in the Congressional District for which the candidate is seeking to be a nominee or a delegate. 25 P.S. § 2872.1. Since 25 P.S. § 2868 provides for a petition circulation period of 21 days, elections in years past have provided candidates 21 days in which to gather their required number of signatures. The Court's Order setting forth the circulation period as March 10th through March 19th in an order filed towards 5:00 p.m. on March 10th effectively allowed only 8 1/2 days, since the petitions had to be filed in Harrisburg by 5:00 p.m. on March 19, 1992. To that incontrovertible temporal fact the Attorney General stipulates.
Three plaintiffs in this action1a are persons who wanted to be on the ballot, but are not because they could not gather the requisite number of signatures in the time frame allowed by the Court's March 10, 1992, Order. Eric Bradway is a registered Democrat, living in Gladwyne, who desires to represent the 13th Congressional District as a delegate committed to presidential candidate Jerry Brown. He filed a written notice with the Brown campaign, according to the rules of the Democratic Party, and asked them to keep him informed of when he could start circulating petitions, since he was aware that litigation had indefinitely stayed the statutory circulation period. He did not find out about the Court's March 10th Order until around 3:00 in the afternoon on March 17th, when someone from the Brown campaign called him. He thought it nearly impossible to organize and collect the required 250 signatures in 1 1/2 days, and thus, "threw up his hands" and did not attempt to gather any petition signatures.
Dorothy Ferebee is a registered Democrat wishing to run in the Democratic primary to represent the 2nd Congressional District as a delegate committed to Lyndon LaRouche. She found out about the notice on March 11th, by telephone call from someone in the LaRouche campaign, but had only collected 85 signatures, out of the required 250, by the filing deadline of March 19, 1992. Betty Clift, is a citizen of Pennsylvania and a registered Democrat in the 16th Congressional District. Before March 10th, she resided in the 5th Congressional District, which for 1992 election purposes is now abolished. She wants to be on the ballot for the Democratic primary for the House of Representatives, but had only some 202 signatures, out of the required 1,000, by March 19, 1992.
The other plaintiff, Philip Valenti, is a citizen of the Commonwealth of Pennsylvania, who is running for a position in the House of Representatives.
He is also the authorized representative of Lyndon LaRouche in Pennsylvania. Lyndon LaRouche is already on the ballot as a Presidential candidate in the Democratic Primary. He is currently incarcerated, however, in the Federal Medical Center of Rochester, Minnesota, serving a fifteen-year sentence. Under 25 P.S. § 2867, nominating petitions for presidential delegates have to be signed by the candidate to which they are pledged. Defendant William Boehm, Commissioner of Elections, sent a letter to Mr. Valenti, however, stating that his office would accept as meeting the requirement of 25 P.S. § 2867,
a list of all persons running as delegate or alternate delegate to the national convention whom you have approved as committed to your candidacy. This list must be organized by congressional district with the names of delegates and alternate delegates arranged in alphabetical order, including addresses, in the appropriate district. A cover memorandum in the form of an affidavit should be attached to such list certifying that the information contained on the list is true and correct. We will accept no nomination petitions from delegates committed to your presidential candidacy until this list is filed in our office.
The affidavit to be used was enclosed and required the signature of the presidential candidate.
Since the congressional districts were undecided before March 10, 1992, this list could not be prepared until the boundaries of the new districts had been drawn. The National Ballot Access Coordinator for Lyndon LaRouche, Marla Minnicino, lives in Virginia, and testified that she received word of the Court's order on March 11, 1992. By March 13, 1992, she had received the revised list of delegates in their appropriate new districts. Someone from the LaRouche campaign flew the list to Rochester, Minnesota on Sunday March 15, and mailed the list to LaRouche from there on March 16, 1992. It is unclear from the record whether the list was mailed directly from inside the Federal Medical Center where LaRouche is incarcerated or from elsewhere in the city. In any event, these rather elaborate procedures are made necessary by Federal Bureau of Prison regulations that prohibit prisoners from receiving overnight or express mail. They cannot receive faxes unless sent by the court, and they cannot receive hand deliveries, unless the person delivering the documents is a legal assistant or a lawyer, which this LaRouche campaign person was not. Mr. LaRouche does not have an authorized representative in the state of Minnesota with whom he is in regular contact. Although the date that Mr. LaRouche received the list is not in the record, he signed it and mailed it on March 20, 1992, to Harrisburg. Some of the delay, if there was any, may have been caused by the fact that the affidavit accompanying the list had to be notarized, and notary services may not have been readily available to Mr. LaRouche as soon as he would have liked.
In the meantime, since the people running the LaRouche campaign in Pennsylvania realized that the shortened time period for filing petitions would make it unlikely that LaRouche could return his list of delegates by the March 19, 1992, deadline, Phil Valenti signed a copy of the list as an authorized representative for Lyndon LaRouche and filed it in Harrisburg on March 19, 1992. By a March 19, 1992, letter, however, defendant Boehm notified Mr. Valenti that since he did not receive a delegate list, signed by the candidate personally, by the March 19, 1992, deadline, the delegate petitions received for Lyndon LaRouche would be rejected as committed delegates. They would, however, be accepted as uncommitted delegates. The result is that, at this time, there are no delegates committed to Lyndon LaRouche on the ballot for the Democratic primary in Pennsylvania.
1. Constitutionality of the schedule set out in the March 10, 1992 Supreme Court Order
Before addressing what is at issue here, it is well to remember what is not at issue. Preliminarily, this case is not precluded from judicial consideration because it is fundamentally a political question. The justiciability of voting and redistricting issues was long ago resolved, and the law is clear that this is an area that may properly be considered by the courts. See Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); U.S. Department of Commerce v. Montana, U.S. , 1992 LEXIS 2113, *24 (March 31, 1992).
Nor is this a question of considering the constitutionality of a Pennsylvania statute. Contrary to the contention of plaintiffs, the statute in question, 25 P.S. § 2868, does not give a prospective candidate 21 days in which to circulate a nominating petition. Rather, it sets a maximum of time, the optimum temporal window within which one may circulate petitions. Yet the statute does not say that time may not be abridged. Further, what is ultimately at issue is not the statute, but rather, the order of the Supreme Court of Pennsylvania and the way it was published and implemented.
It should be noted, therefore, that the traditional deference accorded by courts to legislative decisions because of the legislature's function in weighing competing considerations and adopting measures in the public interest is, respectfully, not due in this situation where I am asked to review a court order rather than a statute. Cf. Trinsey v. Commonwealth, 941 F.2d 224, 233-235 (3d Cir. 1991) (challenging the special election procedures of 25 P.S. § 2776).
Nor am I, in deciding this case, in any way wishing to intrude federally, upon the sovereign Commonwealth of Pennsylvania, in its exercise of its right under Article I, Section IV of the United States Constitution,
to fashion an appropriate approach to orderly election of federal offices. Generally, states may exercise wide discretion in regulating elections to protect legitimate state interests. See Anderson v. Celebrezze, 460 U.S. 780, 788, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1982); Storer v. Brown, 415 U.S. 724, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974). Election procedures are, absent constitutional abuse, quite properly left to the states; yet these powers granted to the States are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. Williams v. Rhodes, 393 U.S. 23, 29, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968).
Also, in assessing the federal constitutionality of the Supreme Court's order, I approach the case with full recognition that the task of redistricting the Commonwealth is a daunting one, indeed. The arithmetical and geographic considerations, in and of themselves, are the epitome of complexity. The human, political considerations are also compelling, and those concerns are compounded when command of the census is that Pennsylvania lose two of its congressional seats, dropping from 23 to 21 districts. The practical realities of the political free-for-all in the context of trying to achieve comportment with the one person, one vote command of Baker v. Carr, supra, and its progeny, presents a task the conquest of which is no mean feat.
In approaching the constitutional concerns, I do not view the case as turning particularly on the equal protection clause of the Fourteenth Amendment to the United States Constitution. The plaintiffs suggest that because the candidates for the House of Representatives and presidential delegates are treated differently from the other candidates, such as the United States Senate, and the Pennsylvania House and Senate candidates, there is invidious discrimination violation of the Equal Protection Clause. That argument disregards reasonable bases for the distinction. The geographic confines of the senatorial districts, of course, remain constant, the metes and bounds of the Commonwealth of Pennsylvania, every square inch of which is represented by each senator, not varying from decade to decade. With respect to the Pennsylvania House and Senate seats, the litigation over the configuration of those districts was settled some time ago, so that candidates for those positions were not kept in the dark, placed under the temporal gun the plaintiffs at bar have had. Rather, it is just the congressional redistricting that remained unresolved until the very end, ultimately being required to run its full litigious course through the courts of the Commonwealth of Pennsylvania, and, indeed, today pending before the federal judiciary. Since cases involving other elected offices were resolved more quickly, or were never brought to litigation, the particular elected offices in the case at bar were treated differently. The distinction is reasonable and understandable, not unlawfully discriminatory, invidiously or otherwise.
Although this case will not turn, in my view, on Equal Protection concerns, the hint of an equal protection violation does perhaps appear, when one observes that the notification procedures which took place here involved the electoral powers-that-be in Harrisburg, immediately notifying members of the two main political parties, Republican and Democratic, by telephone, but not notifying any other political entities, prospective candidates, or the public at large. Rather, any notice as to the March 10th order was done solely to the two main parties, with no concern to apprise anyone else in the Commonwealth who might be interested in running for these offices. That treatment, although perhaps understandable, does nevertheless bear the hallmark of the unequal. Despite that unequal, disparate treatment, I find that the case turns, instead, on a First Amendment right: the freedom to associate.
The U.S. Supreme Court in Williams, supra, determined that ballot-access restrictions burden two different, though overlapping, rights --
the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom, protected against federal encroachment by the First Amendment, is entitled under the Fourteenth Amendment to the same protection from infringement by the States.
Id. at 30. Ballot access restrictions affect candidates, but also have at least some correlative effect on voters by limiting the "field of candidates from which voters might choose." Bullock v. Carter, 405 U.S. 134, 143, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972).
Although these rights of voters and candidates are fundamental, not all ballot access restrictions imposed by the States are constitutionally suspect. The Supreme Court, in Jenness v. Fortson, 403 U.S. 431, 442, 29 L. Ed. 2d 554, 91 S. Ct. 1970 (1971), held that the state has the undoubted right to require candidates to make a preliminary showing of substantial support. States can achieve this objective by requiring candidates to demonstrate such support through the collecting of a statutorily prescribed number of signatures by a statutorily prescribed time. Courts that have looked at state requirements to collect a number of signatures in a specified time period have been focussed most often upon challenges to the signature numerosity, the time allowed to collect being not irrelevant, but ancillary. In these cases, courts have been called upon to construe state statutes setting a signature requirement equal to a certain percentage of votes cast in the last election.
In Storer v. Brown, 415 U.S. 724, 728, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974), a California statute
required an independent candidate for President to file a petition signed by 5% of the total number of votes cast in California at the last general election. The Court found that a requirement, which amounted to gathering 325,000 signatures over 24 days was not per se unconstitutional. It remanded the case to the district court, however, to make sure that the pool of qualified voters was not substantially smaller than the total vote in the last election,
requiring, in reality, signatures of substantially more than 5% of the eligible pool to get the required number of signatures. Four years later, in assessing the California statute, amended after the Storer decision to require an independent candidate to collect within 60 ...