election, cannot be rejected out of hand. It is an extraordinary remedy, but one to which our neighbor, the State of Ohio, has turned to avoid constitutional violations. If it would cure the constitutional defects of the present schedule and would serve this overriding public interest in maintaining voter confidence in the electoral process, this remedy should not be overlooked. It is not, however, entirely clear that delaying the election would inspire or restore voter confidence. There was testimony that a delay could have the opposite effect. I would look forward to the prospect of a delayed election with no relish, but I recognize that although it would undoubtedly bring on many additional burdens, it is not without certain substantial benefits, as well.
The United States Constitution, Article I, § 4, entrusts to the legislatures of the states the scheduling, planning, and conduct of elections for national office. Had the Pennsylvania legislature timely fulfilled its constitutional responsibility. it would be easy to conclude that because of the it would be easy to conclude that because of the deference owed the legislature and out of respect for state's rights and federalism, the federal courts should not act in a way that would interfere with the legislative choice to hold presidential-year primaries on the fourth Tuesday of April. Act of June 1937, P.L. 1333, art. VI, § 603, 25 P.S. § 2753. If the state legislature, and the state court acting as its surrogate, had not scheduled the election so that the constitutional rights of prospective candidates to run and the rights of the people to vote were not infringed, it would have been rather straightforward indeed. But this is not the case before the court.
The equitable maxim, ubi jus, ibi remedium, "equity will not suffer a wrong to be without a remedy," would tend to tip the balance in favor of vindicating constitutional rights, despite the costs, but not at all costs. But equity also demands fairness to the candidates who filed on time. While the constitutional infirmities could be cured by resetting the election, this remedy could not make all the parties to this lawsuit whole. Were the primary reset, candidates who have already begun their campaign, like defendant Arlen Specter, would sustain financial injuries and a variety of intangible harms. Their campaign strategies were geared to an April 28th primary. Their fund-raising and expenditures, their staff hiring and publication of their positions were all set in reliance on this date. The county election boards similarly set the election machinery in motion for this election in reliance on this statutorily designated date. Ballots have been printed, polling places arranged and reserved, requests for absentee ballot received, absentee ballots printed and sent, voting machines prepared, positions on the ballot assigned, campaign voting cards distributed, all in reliance on the April 28th date.
The issue is not that this could not all be redone. The issue is that even if it were, the already registered candidates would be harmed, the voters confused, the election boards and local governments faced with wasted effort and additional expenditures, as well as a host of burdensome, though not insurmountable, logistical problems.
The balance, thus, hangs closer to equipoise today than last week, when the original plaintiffs sought injunctive relief. Despite the shortcomings of this election, the people of Pennsylvania, through their elected officials, legislative and judicial, have chosen to occupy the April 28th niche in the presidential primary sequence. The measure of deference to this legislative determination, iterated by the Third Circuit in Trinsey v. Commonwealth of Pennsylvania, 941 F.2d 224, 235 (3d Cir. 1991), thus, tips the balance slightly, but sufficiently, against granting a preliminary injunction for these additional plaintiffs.
But this ultimate result should not be viewed as a constitutional victory that is but Pyrrhic. This case, contrary to the vast bulk of authorities on the books before now, does serve unequivocally to proclaim the principle--prospectively, at least (as well as for at least one plaintiff at bar, even though he still failed to get the need number of signatures), that the citizens' First Amendment rights in this regard shall not be blithely bulldozed into some constitutional landfill. It serves notice to the defendants, as well as to the Supreme Court of Pennsylvania, that the next time around--should there ever be a next time, when such a preposterous time scheme might be tacitly thrust upon the citizenry, that an equitable-balancing argument, such as that heard here, will ring hollow and fail. so also, this precedent serves to educate the people, to put them on notice of this admittedly esoteric constitutional tort and the viability of a federal cause of action in this electoral context. Next time around, should there be one, the citizens will know that the state supreme court is not ultimately omnipotent, and that this case will serve as a precedent to give future federal court orders in this context some real teeth.
To that end, this case has not been an empty exercise, but has genuine constitutional significance. This was not a war to end all wars, but it was a constitutional battle to insure that the authorities of the Commonwealth of Pennsylvania shall not again be permitted to abort these immensely important constitutional rights.
As to that worthy goal, it has succeeded. The word has now gone forth.
An order follows.
AND NOW, this 9th day of April, 1992, after lengthy hearings, consideration of authorities propounded by counsel, as well as their oral arguments, the court standing by its initial determination that the compression of time, together with all other factors surrounding the circulation of petitions to get oneself placed on the ballot, presented a situation that ultimately was unconstitutional, yet the court being mindful of the extraordinary remedy embraced in a preliminary injunction, and that the equities - substantial as they are on both sides - must be balanced, the court concludes that despite a plain deprivation of First Amendment rights visited on a number of members of the citizenry by the delayed, unconstitutional Order of the Supreme Court of Pennsylvania, the turmoil into which the electorate and all aspects thereof would be tossed and the very real possibility of loss of suffrage to possibly millions of citizens of the Commonwealth of Pennsylvania, weigh with sufficient gravity as to lead me to the constitutionally unpalatable, yet equitably required, conclusion that a preliminary injunction as to all plaintiffs, intervening since my first Opinion of April 3, 1992, at this juncture must be DENIED.
It is further ORDERED that Stuart Kessler's motion to reconsider my April 6, 1992, order vacating, on the basis of the Rooker-Feldman doctrine, my April 3, 1992, order granting him injunctive relief is GRANTED. However, since it is my view that the Pennsylvania Supreme Court's decision handed down on April 2, 1992, was a final adjudication on Mr. Kessler's request to be placed on the ballot under whatever theory raised, the fact that he here now raises a First Amendment theory, asking the same relief, does not allow me to undo what the Pennsylvania Supreme Court has done. Thus, it appearing that the Rooker-Feldman doctrine does apply to Mr. Kessler, I shall AFFIRM by earlier ruling on April 6, 1992, to vacate my April 3, 1992 order. It is further ORDERED that Mr. Eric Bradway's request for an extension of time from my April 3, 1992 order allowing him until April 6, 1992, to file a petition containing 250 valid signatures with the Bureau, it appearing that Mr. Bradway failed to file the said petition with the required number of signatures in the extended time allowed by the court, his request is DENIED. Equity aids the vigilant, not those who slumber on their rights.
BY THE COURT:
Robert S. Gawthrop, III J.