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.
BY THE COURT:
ROBERT S. GAWTHROP, III J.
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
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.]