the discretion of the state"); Hackett, 298 F. Supp. 1021 (court refused to require a special election to fill vacancies on the city counsel to be held on primary election date); Ogilvie, 426 F.2d at 1338 (government official "may prefer one day of the week over another, or cause the special election to coincide with or to avoid being held on the same day as another election").
Finally, the Court notes that had the Pennsylvania legislature intended to require the Lieutenant Governor to schedule special elections at the time of the next general or municipal election, the legislature could have established such a procedure. Section 2776 of the Pennsylvania Election Code, 25 Pa.Stat.Ann. § 2776, which sets forth the procedure for filling a vacancy in the United States Senate, for example, provides, inter alia, that the Senator's unexpired term is to be filled by a special election to be held at the time of the next general or municipal election occurring at least 90 days after the happening of the vacancy, and in the interim the Governor may make a temporary appointment to fill the vacancy. The Court takes no position as to the relative merits of the procedures set forth in sections 2776 and 2778. Whatever the reason for the different procedures, the Court "must accord the state's decision, undoubtedly 'passed in response to the states actual experience in these matters' to be a 'permissible exercise of its discretion'." Trinsey, 941 F.2d at 235 (citing Valenti v. Rockefeller, 292 F. Supp. 851, 866 (S.D.N.Y. 1968)). "If the voters of the state are unhappy with the legislature's decision, then the democratic process gives them ample opportunity for redress." Id.
In their Amended Complaint, plaintiffs also charge they are being unconstitutionally denied representation in the Pennsylvania Senate. See Amended Complaint at P 36, 45, 48. Plaintiffs do not, however, cite any cases in support of this argument.
To the extent that this contention is based on the due process clause of the Fourteenth Amendment, the Court holds that an additional two months without representation in the Senate is not "a fundamental imperfection in the functioning of democracy." Rodriguez, 457 U.S. at 11, 102 S. Ct. at 2200 (citing Valenti v. Rockefeller, 292 F. Supp. 851, 867 (S.D.N.Y. 1968)); see Hackett, 298 F. Supp. at 1029 ("the longer the plaintiffs are without a district councilman the more serious their claim of deprivation of a fundamental right becomes"). To the extent that this contention is based on the equal protection clause of the Fourteenth Amendment, the Court holds that a delay of two months does not violate the equal protection clause of the Fourteenth Amendment. See Mason, 1991 WL 185243 (delay of five months in calling special election does not violate equal protection clause).
In their Amended Complaint, plaintiffs additionally charge that section 2778 is unconstitutional because the statute promotes "purposeful discrimination" against plaintiffs and the other citizens of the 10th Senatorial district "based upon political beliefs and affiliations" in violation of the First Amendment. See Amended Complaint at P 40. The First Amendment protects the right "to associate for the common advancement of political beliefs." Democratic Party of United States v. Wisconsin, 450 U.S. 107, 122, 101 S. Ct. 1010, 1019, 67 L. Ed. 2d 82 (1981) (citing Kusper v. Pontikes, 414 U.S. 51, 56, 94 S. Ct. 303, 307, 38 L. Ed. 2d 260 (1973)). This right "necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Id.
In the instant case, section 2778 of Election Code in no way infringes on the right of plaintiffs, or any other citizens of the 10th Senatorial District, to associate with any political party, or to participate in the special election because of their party affiliation. Nor does section 2778 interfere with the rights of any political party to control its own internal affairs or set its own goals. See Orloski v. Davis, 564 F. Supp. 526, 534 (M.D. Pa. 1983) Moreover, all registered voters of the 10th Senatorial District can vote in the special election, and candidates from any political party may run for the vacant Senate seat. "Here, the voters' choices in an election are not being limited; the election in which they may vote is, rather, being postponed." Republican Party of Oregon v. Keisling, 959 F.2d 144, 145 (9th Cir. 1992). Thus, section 2778 does not violate plaintiffs' First Amendment right of association. Cf. Rodriguez, 457 U.S. at 14, 102 S. Ct. at 2202.
In sum, the Court concludes that section 2778 of the Pennsylvania Election Code, 25 Pa.Stat.Ann. § 2778, is constitutional on its face and as applied by the Lieutenant Governor in scheduling the special election for July 13, 1993.
An appropriate Order follows.
AND NOW, to wit, this 9th day of February, 1993, upon consideration of the Petition of Plaintiffs, James C. Greenwood, David W. Heckler, Thomas Druce, Roy Reinard, III, Paul I. Clymer and David J. Steil, for a Temporary Restraining Order, and Complaint and Petition for Injunction and Other Relief, following a telephone conference with counsel for the parties on said date, IT IS ORDERED that the Petition of Plaintiffs, James C. Greenwood, David W. Heckler, Thomas Druce, Roy Reinard, III, Paul I. Clymer and David J. Steil, for a Temporary Restraining Order is DENIED WITHOUT PREJUDICE and a hearing on plaintiffs' Complaint and Petition for Injunction and Other Relief is scheduled for Thursday, March 4, 1993, at 10:00 A.M., in Courtroom 12-B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
IT IS FURTHER ORDERED THAT :
1. The parties, through counsel, shall promptly confer with respect to the joinder of any additional parties, and shall report to the Court jointly in writing on or before February 12, 1993, regarding any such joinder. In the event plaintiffs decide to join additional parties, they are granted leave to do so by Amended Complaint which shall be filed and served on or before February 16, 1993;
2. In the event the parties choose to engage in discovery, it shall proceed on an expedited basis and shall continue in such manner as will assure that all discovery is completed on or before February 16, 1993;
3. In the event defendant decides to file a Motion to Dismiss the Complaint or, if filed, an Amended Complaint, such Motion shall be filed and served on or before February 19, 1993. The Response to any such Motion shall be filed and served on or before February 25, 1993;
4. Counsel for the parties shall meet to prepare a complete and comprehensive stipulation of uncontested facts pursuant to Local Rule of Civil Procedure 21, paragraph (d)(2)(b)(2). Such stipulation shall be filed and served on or before noon on February 26, 1993;
5. Plaintiffs shall file and serve, not later than noon on March 1, 1993, proposed findings of fact and conclusions of law, a witness list and a proposed order;
6. Defendant shall file and serve, not later than noon on March 3, 1993, proposed findings of fact and conclusions of law, a witness list and a proposed order;
7. Two (2) copies of the documents identified in paragraphs 1, 3, 4, 5 and 6 shall be served on the Court (Chambers, 12613), at the time the originals are filed. Service of such documents on the Court, and service of all such documents on opposing counsel, shall be by facsimile transmission, hand delivery, or equivalent; and,
8. All exhibits which the parties intend to present at the hearing on March 4, 1993, shall be numbered and exchanged in advance of the hearing. At the commencement of the hearing, the Court shall be furnished with two (2) copies of each exhibit and three (3) copies of an exhibit list. The parties shall comply with Local Rule of Civil Procedure 21, paragraph (d)(2)(b)(6), in respect to exhibits.
BY THE COURT:
JAN E. DUBOIS, J.