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April 1, 1992

BRENDA K. MITCHEL, Secretary of the Commonwealth of Pennsylvania and WILLIAM BOEHM, Commissioner, Bureau of Commissions, Elections, and Legislation, Defendants

The opinion of the court was delivered by: BY THE COURT; GAWTHROP


 Gawthrop, J.

 April 1, 1992

 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, *fn1" 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. *fn2" 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. *fn3" 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, *fn4" 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. *fn5"

 2. First Amendment

 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 *fn6" 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, *fn7" 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 days, 1% of the total number of votes cast in the last general election, the court in Cross v. Fong Eu, 430 F.Supp. 1036 (N.D.Ca. 1977) upheld its constitutionality in requiring approximately 100,000 signatures within that two-month period.

 In Perry v. Grant, et al., 775 F.Supp. 821 (M.D.Pa. 1991), plaintiff, a candidate of the U.S. Taxpayers party, challenged the Pennsylvania statute, 25 P.S. § 2911, which required an independent party candidate seeking a position on a special election ballot to file nomination papers bearing signatures of at least 2% of the qualified electors who voted for the winning candidate in the last state-wide election. Perry, who wanted to run for the U.S. Senate seat left vacate by Senator Heinz's untimely and tragic death, had to collect 41,305 signatures within 149 days, requiring an average of 277 signatures each day. The court upheld the constitutionality of the statute as a reasonable burden on those wishing to be candidates for office. In Williams v. Tucker, 382 F.Supp. 381 (M.D. Pa. 1974), the court construed the same "two-percent" rule statute and found it constitutional. There, the Commonwealth's calculation required that an independent candidate collect 2,452 signatures within the statutory period of 21 days, 25 P.S. § 2913.

 While it is true that courts have upheld signature requirements seemingly more burdensome than 1,000 signatures over 8 1/2 days, in the case at bar, plaintiffs are not challenging the numerosity or time allowed, per se. Here, the question is whether, because of the shortness of time within which to have the petitions signed and submitted, there was, under all the circumstances, so abridged a practical duration as to constitute an unconstitutional abridgement of that First Amendment right. In analyzing this situation, the case does not turn principally on the shortness of time. As mentioned, although the time in question was proclaimed as being 10 days, because of the lateness of the day when the order was filed on March 10th, and because petitions have to be filed in Harrisburg by 5:00 PM on March 19th, the actual time in question, realistically, computes to more like eight and one-half days. That time factor, in and of itself, I need not and do not address as to whether it would be of insufficient duration or otherwise, in which to get the petition signed. Rather, I must look at the practical implementation of that eight and one-half day circulation period, beginning immediately in the newly announced districts, and the procedures which the order put into effect to imbue the citizenry with the right, the knowing right, to get their names on a ballot and run for these offices.

 Although the Supreme Court has used varying tests in assessing the constitutionality of ballot access restrictions, they all involve a basic balancing test. In Anderson v. Celebrezze, supra, the Court determined that courts considering these matters must

 first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Id. at 789.

 a. Character and Magnitude of the Injury

 In considering the character and magnitude of the asserted injury to the right of association under the First and Fourteenth Amendment, it is well to recall the observation of Justice Black, speaking for a majority of the United States Supreme Court in Williams v. Rhodes, supra, "no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Id. at 31 (quoting Wesberry v. Sanders, at 17, 11 L. Ed. 2d at 491). Hence, I conclude that the character and the magnitude of the injury is immense.

 b. State's interests

 The state asserts that the shortened circulation period and filing deadline were adopted in order to provide for an orderly election process. It points out that the shortened time period serves legitimate state interests by ensuring that "the primary elections for candidates for United States Representatives and national convention delegates are held as scheduled on April 28, 1992; ensuring that candidates for Representatives and convention delegates reflect newly drawn boundaries which are fair and equitable; preventing an overcrowded ballot; and protecting the integrity of the party system. Taking the last first, the Supreme Court's schedule, adopting the circulation period and providing for notice on March 17th, does protect the integrity of the party system, in that it discourages candidates who are not connected with the mainstream of the two political parties from trying to appear on the ballot. On the other hand, while I recognize a need to prevent the proliferation of splintering factions, protecting the integrity of the party system means more than protecting the virtual monopoly of the two traditional parties. At the heart of the electoral process, is the right to citizens to express their different viewpoints by trying to get someone to represent them as a candidate.

 As to the state interest in preventing overcrowding of the ballot, the Supreme Court's Order certainly accomplishes that. The question is, however, whether the piece-meal, word-of-mouth notification procedures does it fairly and sufficiently to pass constitutional muster. As to candidates representing congressional districts that are fair and equitable, that issue is not before me, but is even now pending before a three-judge panel of this circuit. The plaintiffs do argue, however, not without some basis, that it is not fair and equitable to spring on them a short schedule such as this one, without some reasonable advance notice of the size and location of one's district -- which, and where, it is.

 The effort to hold a timely election is really the only state interest that is legitimately served by the time deadlines in Supreme Court's Order. While a shortened time period for circulation may have been a necessary burden on plaintiffs' right of access to the ballot in order to hold the election as scheduled on April 28, 1992, however, it is the procedures adopted by the Order of the court that place an unreasonable and unfair burden on candidates attempting to get on the ballot.

 c. Balancing of Interests and Injury

 In inquiring whether the shortened time period and lack of notice "unfairly or unnecessarily burdens the availability of political opportunity," Anderson v. Celebrezze, supra at 793, I turn to the question of notice. In Fuentes v. Shevin, 407 U.S. 67, 80, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), albeit in another procedural context, the Supreme Court of the United States stated that notice must be given in at a meaningful time and in a meaningful manner. In this case, the Supreme Court of Pennsylvania expressly directed that notice of the cutoff date and time for filing petitions as March 19, 1992, at 5:00 p.m. in Harrisburg, was to be published in newspapers, presumably so that the public would be aware of the filing deadline - on March 17, 1992. *fn8" The defendants argue that the official publication has no relevance to petition-filing deadlines, but rather is done purely for the purpose of apprising the voters of the date of the forthcoming election and the configuration of their new congressional districts. But that argument is belied by the very terms of the contents required to be published: "such notice [meaning the one to be published March 17, 1992] to specify that the Court has established a deadline of March 19, 1992 by which nomination petitions for such offices must be filed."

 One need not be a maven at divining the meaning of the Julian calendar in order to realize that that March 17th notice as to March 19th, in practical reality, gives the citizenry notice, coming only two days before the filing deadline. Two days.

 There are a number of cases, regarding signature requirements, which I have considered, supra, and discussed at some length. For example, Perry v. Grant, et al., 775 F.Supp. 821 (M.D.Pa. 1991), in which the court upheld a signature requirement that averaged out to 277 signatures in one day, over a 149 day period. Those cases must be considered in the context of the total time span which the prospective candidates were accorded. When a candidate is given, for example, 149 days in which to get a certain, rather large number of signatures, a candidate has some lead time in which to organize his or her supporters, to determine the clearly delineated dimensions of the electoral district within which the signatures could be sought, to get geared up for action, and to get the petitioning task accomplished. Realistically, there needs to be some preparatory time, some organizational time, as well as some actual soliciting time, when the petition seekers go door to door, shopping center to shopping center, street corner to street corner, or whatever. But to implement that exercise, there needs to be some preparatory time. Here, with the geographic perimeters of the districts, together with the official cutoff time, sprung on the potential candidates at the eleventh hour, they simply are not given a realistically reasonable time. It is so unreasonable as to be constitutionally inadequate.

 The fact is that all citizens -- assuming appropriate age and other such qualifications, *fn9" have the right to run for office, not just those who are in the inner circles of the two major parties. The process of haphazard notification combined with the shortened time period would naturally impact more severely on parties or candidates who do not have big-party resources ready to step into action. It may take candidates who represent minority views, or delegates who represent not-well-known candidates, longer to attract people to their cause and to obtain signatures. And it certainly affects members of the general public who may have contemplated running, but were waiting to see the results of the redistricting, and who did not find out until the order was published in the newspaper, two days before the filing deadline. Why the Pennsylvania Supreme Court order specifically delayed the official newspaper notification date for an entire week, when roughly 80% of the already truncated time had gone by, is not for me to speculate. It is only for me to decide whether that notification delay is so great as to cut off these plaintiffs' constitutional rights to associate with the parties or the candidates of their choice. I am constrained to conclude that it does.

 This conclusion is reinforced when one observes that the notice was not published in the Pennsylvania Bulletin until March 21st, two (2) days after the filing deadline. The obviousness of the untimeliness of that is self-evident. The Pennsylvania Bulletin is the preeminent device for publishing documents, to give notice to the public of official happenings and documents. See 45 Pa.C.S. §§ 724-725.

 Eric Bradway presented compelling testimony of how late notification on March 17, 1992, of the dates of the circulation period and filing deadline so discouraged him in his intention to run as presidential delegate for Jerry Brown that he "threw up his hands," deeming it impossible to collect 250 signatures in one and one half days. Betty Clift found out about the March 10, 1992, order on that evening, and Dorothy Ferebee found out sometime the next day, both by a telephone call from someone in the LaRouche campaign. Both of them had understandable trouble, however, in rearranging work schedules on such short notice, and found it difficult to organize friends and family and expect them to drop everything to run out to gather signatures. Clift declined to cancel sales contracts she had already under taken in her job as a marketing representative to show her commitment to running in a primary. They both testified that they felt confident that if they had had advance warning or the full 21 days, they would have been able to collect the required number of signatures. Both of them continued to collect signatures through the date of the hearing, March 30, 1991, March 31st being the 21st day from the date of the order. Dorothy Ferebee had collected about 300, exceeding the required 250, and Betty Clift had collected about 820, coming very close to the required 1,000, one and 1/2 days before they would have been filed, using a 21 day circulation period.

 As to Philip Valenti and the untimely filing of the list of delegates committed to LaRouche, the circumstances of LaRouche's incarceration and the March 19th deadline for filing, announced by the court on March 10, 1992, made it virtually impossible for LaRouche to file his list with his signature on time. Since no one knew the boundary lines of the new congressional districts until the court announced them late in the day on March 10th, the list could not be prepared until after that date, and prison regulations prevented the use of modern-day modes of rush delivery, such as a telefax machine, overnight mail, or even air travel and hand delivery. Despite the best efforts of the LaRouche campaign people, the lack of any advanced notice of the district boundaries or the filing deadline, in this particular context, unconstitutionally burdened the access to the ballot of delegates committed to Lyndon LaRouche.

 Sir Edward Coke's aphorism, "The knowne certaintie of the law is the safetie of all," Lord Coke, Institutes 395 (12th ed. 1738) (Epilogue to Pt. 1, Bk. 3), is oft cited with approbation. See Frilette v. Kimberlin, 508 F.2d 205, 219 (3d Cir. 1974); Kratz v. Kratz, 477 F.Supp. 463, 483 (E.D.Pa. 1979). What happened in this case is that the concatenation of events, from the late-in-the-day filing on March 10th, to the late-in-the-time-period notice of March 17th, when the order was permitted, by its own terms, to go public, to the after-the-deadline official publication in the Pennsylvania Bulletin, is that the public at large was visited with the unknowne uncertaintie of the law. That is not right. The public has a right to know its rights, and to keep the public in the dark so long that its rights can realistically be exercised only in theory, because of the slender sliver of time left to breathe vitality into their exercise, is to suffocate those constitutional rights into extinction. The demise of the First Amendment this court cannot countenance.

 The Pennsylvania Supreme Court could have made some provision in its order either for immediate notification and publication, for a lag time before the circulation period began, or for a longer circulation period. Any of these options could have accommodated the state's interest in holding a scheduled election on time and its orderly preparation without unnecessarily burdening potential candidates, and in particular, these plaintiffs. The path chosen by the Supreme Court of Pennsylvania infringed on plaintiffs' First Amendment rights, and as such, I must declare it unconstitutional.

 There was no discernible need to delay publication of the March 10th Order until St. Patrick's Day. In addition, the failure to advertise in the Pennsylvania Bulletin until Saturday, March 21st, is particularly perplexing when the Order itself stated that it should be done "as soon as possible." Presumably, the Secretary of the Commonwealth had this significant -- politically, immensely significant -- Supreme Court Order shortly after it was filed. The Secretary of the Commonwealth holds forth from his offices in Harrisburg. The Pennsylvania Bulletin is published in Harrisburg. Although the Supreme Court Order stated that the district notices were to be published in the Bulletin as soon as possible, someone did not move fast enough. The Secretary had Wednesday to get the order over to the printer. The Secretary had Thursday. And the Secretary had half a day on Friday, the deadline not being until noon that day. But curiously, this Order just did not make the deadline. It is not my task to probe the motives, if any, for this bureaucratic snail's pace. But I do observe that the Secretary of the Commonwealth had substantially more time to get this order to the printer than Eric Bradway had to gather his 250 signatures and get them from greater Gladwyne to the heart of Harrisburg.

 2. Appropriateness of an Injunctive Remedy

 Although I recognize that the granting of an injunction is an extraordinary remedy, I find that it is here required. An injunction will only be granted if plaintiff can demonstrate 1) the reasonable probability of eventual success in the litigation and 2) that the movant will be irreparably injured if relief is not granted. The court should also consider 3) the possibility of harm to other interested persons from the grant or denial of the injunction, and 3) the public interest. Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 634 (3d Cir. 1991).

 I have assessed plaintiffs' likelihood of success on the merits in this constitutional challenge in Part I of this opinion, which I here incorporate. Having found the Supreme Court Order an unconstitutional burden to ballot access, I conclude that plaintiffs have carried their burden of proving likelihood of success on the merits.

 As to the requirement that the plaintiffs prove irreparable harm, defendants argue that a hopeful candidate's being denied access to the ballot is not harm, irreparable or otherwise. As I noted in my above discussion on the constitutionality of the Order, the Supreme court language, together with a healthy dollop of common sense, leads me inexorably to conclude the exact opposite. Plaintiffs have carried their burden of proving irreparable harm.

 In considering the third factor -- harm to others --I do conclude that some degree of harm would befall the defendants would today to grant an injunction. As defense witnesses testified, much of the ballot and voting-machine preparation is started, and some of it half-finished. Both witnesses did state, however, that, if so ordered by the court, they could change the ballots and still complete preparations in time for the election on April 28, 1992. Although it could be costly and more than a little inconvenient, it could be done, as it has been many times before. If I deny the injunction, there would be obvious harm to those kept off the ballot, as well as to voters, since fewer, less diverse viewpoints may be represented on the ballot. For example, at this point, if a voter wanted to, he or she could not vote for a delegate committed to Lyndon LaRouche. "Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms." Williams v. Rhodes, supra at 32. In deciding this motion, it is not my task to concern myself with the validity or wisdom of Mr. LaRouche's platform. That is for the people to decide. If I were to deny the injunction, I will have stepped in and usurped their decision.

 The defendants suggest that the public interest, the fourth prong of the preliminary injunction analysis, will be best served by denying injunctive relief, thereby avoiding the inconvenience and expense the state would have to incur in changing the ballots and reprogramming the voting machines. I disagree. The public interest will be more adversely affected if an order that unconstitutionally burdens the people's right to know of the requirements for candidacy and to express their viewpoints by running for office or supporting someone on the ballot, goes unremedied. The public interest is served by ensuring that access to the government, through access to the ballot, is open to all.

 There is a familiar figure of speech which is relevant here, but which is often misused: a Hobson's choice. Many people misuse the expression to describe a situation in which one is confronted with a dilemma, which, strictly speaking, is where one has two choices, equally unacceptable, neither particularly palatable. Although that sort of dilemma has been known to appear on a ballot or two in the annals of political science, it is not a true Hobson's choice. Rather, the true meaning of the term comes down to us from one Thomas Hobson, a seventeenth-century liveryman of Cambridge, England, who, when hiring out one of his horses, would always make his customer take the steed nearest the stable door. Thus, a Hobson's choice, in the proper sense of the term, is no choice at all, but one which has been pre-ordained--in his case, by the powers-that-be, or the power-that-was.

 Although Hobson's-choice ballots have been the rule in certain totalitarian countries in years past, and even down to today, that approach has not been the tradition of this Republic and its heritage of vigorous democracy. The best interests of the public are not served by procedures, which serve to exclude ballot names to the point of avoiding the inconvenience of competition to the established mainstream.

 Thomas Hobson is dead. If today's ballots were permitted to echo his precedent, so, too, would be democracy.


 AND NOW, this 1st day of April, 1992, upon careful consideration of plaintiffs' request for a preliminary injunction and defendants' response thereto, after a hearing on the matter, plaintiff's request is GRANTED. I enjoin William Boehm, Commissioner of the Bureau of Commissions, Elections, and Legislation from refusing, on the basis of untimeliness, any nominating petition submitted by plaintiffs, if submitted before Monday, April 6, 1992 at 5:00 p.m. in Harrisburg. Brenda K. Mitchel, the Secretary of the Commonwealth shall comply with this order as well.

 In addition, the Bureau is enjoined from refusing to accept as authorized delegates, committed to Lyndon LaRouche, the list of delegates signed by Lyndon LaRouche, and mailed by him on March 20, 1992.





 Robert J. Mellow, Senator, 22nd District, et al, Individually and in their Official Capacities, Appellants v. Brenda K. Mitchell, Acting Secretary of the Commonwealth, and William Boehm, Commissioner of the Bureau of Commissions, Elections, and Legislation, Department of State, in their Official Capacities only, Appellees; No. 7 M.D. Misc. Docket 1992

 ARGUED: MARCH 7, 1992


 Per Curiam

 And now, this 10th day of March, 1992, pursuant to hearing held upon complaint, it is hereby Ordered as follows:

 1. The Petition to Intervene filed on behalf of State Senator James C. Greenwood, Andrew L. Warren, Mark S. Schweiker, and Sandra A. Miller is granted. The Petition of Edward J. Wilkes, Jr., Barbara Frailey, William A. Wall, William M. Keim, III, Justus C. Barber, Patricia Anne Buard, and Russell U. McLaughlin for Leave to Intervene is granted.

 2. The exceptions to President Judge David W. Craig's Findings, Recommended Decision, and Form of Order filed in this matter are dismissed.

 3. Section 1801-A of the Election Code, Act of June 3, 1937, P.L. 1333, added March 3, 1982, P.L. 127, § 2, 25 P.S. § 3571, is hereby declared unconstitutional and its implementation for the purpose of conducting elections to the office of Representative in the United States Congress is hereby permanently enjoined.

 4. Such elections, in the primary and general elections in the years 1992, 1994, 1996, 1998 and 2000 shall be conducted in accordance with the Congressional Election Districts described in Appendix A, attached to and hereby made part of this Order, and hereby adopted as the apportionment of the Commonwealth into twenty-one (21) Congressional Districts until the same shall be lawfully changed.

 5. The schedule for the primary elections to be held April 28, 1992, for the election of Representatives to the United States Congress and for Delegates and Alternate Delegates to National conventions, shall be conducted by the Secretary of the Commonwealth and by all election officers within the Commonwealth in accordance with the Revised Election Calendar attached to this Order as Appendix B, and hereby made part hereof, to provide for an orderly election process.

 6. In addition, the Secretary of the Commonwealth shall, as soon as possible, publish in the Pennsylvania Bulletin, by description and, if feasible, by maps, the Congressional Districts hereby adopted in Appendix A.

 7. The members of Congress now in office shall continue in the office until expiration of their respective terms.

 8. Vacancies now existing or happening after the entry of this Order and before the commencement of the terms of the members elected at the election of 1992 shall be filled for the unexpired terms from the districts formerly prescribed in Section 1801-A of the Election Code, Act of June 3, 1937, P.L. 1333, added March 3, 1982, P.L. 127, § 2, 25 P.S. § 3571.

 9. In the event any municipality or part thereof should be omitted in the description of congressional districts in Appendix A, the municipality or part thereof shall be included as a part of the congressional district which completely surrounds it. Should any omitted municipality or part thereof be not completely surrounded by one congressional district, it shall become a part of that congressional district to which it is contiguous, or if there are two or more such contiguous districts, it shall become a part of that congressional district contiguous thereto which has the least population.

 10. All signatures to nominating petitions for candidates for Representative in the United States Congress, and candidates for Delegate and Alternate Delegate to the National conventions of the political parties obtained before the date of this Order are hereby declared to be void and invalid.

 11. The two day mail notice required for the casting of lots pursuant to 25 P.S. § 2875 is hereby waived.

 Opinion to follow.

  Mr. Chief Justice Nix, Mr. Justice Larsen and Mr. Justice McDermott did not participate in the consideration or decision of this case.


 Revised Election Calendar for Representative in United States Congress and Delegate and Alternate Delegate to National Conventions

 March 10 First legal day to circulate and file nomination petitions

 March 11 Secretary of the Commonwealth will send to the county boards of elections a written notice announcing that candidates are to be nominated at the April 28, 1992 primary for the office of Representative in Congress

 March 11 Secretary of the Commonwealth will send to the county boards of elections a written notice announcing that candidates are to be elected at the April 28, 1992 primary for the party offices of Delegate and Alternate Delegate to the National conventions of the political parties and designating the number of such offices to be elected in each congressional district

  March 17 The county boards of elections will publish a notice in newspapers that nominations of candidates for Representative in Congress will be made and that elections of persons to the party offices of Delegate and Alternate Delegate to National conventions of the political parties will occur at the April 28, 1992 General Primary, such notice to specify that the Court has established a deadline of March 19, 1992 by which nomination petitions for such offices must be filed

  March 19 Last day to circulate and file nomination petitions

  March 20 First legal day to circulate nomination papers nominating independent candidates of political bodies or candidates of minor political parties

  March 20 First legal day to file nomination papers nominating independent candidates of political bodies or candidates of minor political parties

  March 20 Secretary to the Commonwealth will transmit to each county board of elections a list of all candidates for Representative in Congress and Delegate or Alternate Delegate to National conventions who have filed nomination petitions with the Secretary of the Commonwealth and who are not known to have withdrawn or been disqualified

  March 23 The county boards of elections will deliver or mail to qualified electors who previously have been sent special write-in absentee ballots an additional list containing the names of all candidates for Representative in Congress or Delegate or Alternate Delegate to National conventions who have been named in nomination petitions filed with the Secretary

  March 24 Last day for candidates who have filed nomination petitions to withdraw

  March 25 Last day to file objections to nomination petitions

  March 31 Last day that may be fixed by the Commonwealth Court for hearings on objections that have been filed to nomination petitions

  April 3 Last day for Commonwealth Court to render decisions in cases involving objections to nomination petitions

  May 8 Last day for acceptance of absentee ballots for all elections

  [Pa.B. Doc. No. 92-528. Filed March 20, 1992, 9:00 a.m.]

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