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GREENWOOD v. SINGEL

March 12, 1993

JAMES C. GREENWOOD DAVID W. HECKLER THOMAS DRUCE ROY REINARD, III PAUL I. CLYMER DAVID J. STEIL, Plaintiffs
v.
MARK SINGEL, Lt. Governor of the Commonwealth of Pennsylvania and BRENDA K. MITCHELL, Secretary of the Commonwealth of Pennsylvania, Defendants and H. WILLIAM DEWEESE, Speaker of the House of Representatives of the Commonwealth of Pennsylvania. Intervenor



The opinion of the court was delivered by: BY THE COURT; JAN E. DUBOIS

 DUBOIS, J.

 MARCH 12, 1993

 Plaintiffs, James C. Greenwood, David W. Heckler, Roy Reinard, III, Paul I. Clymer and David J. Steil, all residents and registered voters in the 10th Senatorial District of Bucks County, Pennsylvania, and plaintiff Thomas Druce, a resident of Bucks County, (collectively "plaintiffs") instituted this action against Mark Singel, the Lieutenant Governor of the Commonwealth of Pennsylvania and President of the Senate of the Commonwealth of Pennsylvania, and Brenda K. Mitchell, Secretary of the Commonwealth of Pennsylvania. H. William DeWeese, Speaker of the House of Representatives of the Commonwealth of Pennsylvania, was granted leave to intervene pursuant to Federal Rule of Civil Procedure 24(b)(2).

 Plaintiffs seek a declaration that section 2778 of Title 25 of the Pennsylvania Statutes, 25 Pa.Stat.Ann. § 2778, *fn1" which sets forth the procedure for filling a vacancy in either house of the Pennsylvania General Assembly, is unconstitutional. Plaintiffs contend that section 2778 violates the due process and equal protection clauses of the Fourteenth Amendment because it grants discretion to the presiding officer of each house of the General Assembly to issue a writ for a special election to fill a vacancy in his respective house without requiring that the election be scheduled within a specified period of time. Plaintiffs further seek a preliminary injunction to enjoin a special election to fill the vacancy in the 10th Senatorial District *fn2" in Pennsylvania scheduled for July 13, 1993, and to require that the special election be scheduled for May 18, 1993, which is the date already fixed for a municipal primary election. Plaintiffs contend that the failure of the Commonwealth to hold the election on May 18, 1993 will result in a deprivation of their fundamental right to vote and be represented in violation of the First and Fourteenth Amendments. *fn3" In essence, plaintiffs claim their constitutional rights are violated because defendants impermissibly delayed scheduling the special election beyond May 18, 1993.

 An evidentiary hearing was held on March 4, 1993, on plaintiffs' Petition for Injunction and Other Relief. At the conclusion of the hearing, the Court heard argument on the pending Motions to Dismiss.

 The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and §§ 1343(3) and (4).

 For the reasons that follow, the Court will grant the Motions to Dismiss of defendants Singel and Mitchell and intervenor DeWeese and deny plaintiffs' Petition for Injunction and Other Relief. The Court does so, and does not consider the evidence presented at the hearing, because the Court concludes (1) plaintiffs have failed to state a claim upon which relief can be granted, and (2) with the single exception of adjudicative facts related to the demographics of the Pennsylvania Senate and the 10th Senatorial District, which are not in dispute and are favorable to plaintiffs, and of which the Court takes judicial notice pursuant to Federal Rule of Evidence 201, the evidence presented at the hearing did not establish any facts not pled in the Amended Complaint which are relevant to the issues before the Court.

 I.

 In deciding a motion to dismiss for failure to state a claim, the court must accept as true all factual allegations contained in the complaint and draw from them all reasonable inferences. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). A complaint should be dismissed for failure to state a claim only if it is clear that no relief can be granted under any set of facts which could be proved. Id.; see Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984).

 II.

 The Supreme Court "has often noted that the Constitution 'does not confer the right of suffrage upon any one,' and that 'the right to vote, per se, is not a constitutionally protected right'." Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9, 102 S. Ct. 2194, 2200, 72 L. Ed. 2d 628 (1982) (citations omitted). However, where a state provides that its representatives are to be elected "a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Id., 457 U.S. at 10, 102 S. Ct. at 2200 (citing Dunn v. Blumstein, 405 U.S. 330, 336, 92 S. Ct. 995, 1000, 31 L. Ed. 2d 274 (1972)).

 The right to vote is protected against state encroachment by the due process and equal protection clauses of the Fourteenth Amendment. If the state denies the right altogether or abridges it in a manner which renders the electoral process fundamentally unfair, there may be a violation of due process. If, on the other hand, the state discriminates in favor of some voters or political parties and against others, there may be a violation of equal protection. See Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga. 1981). Plaintiffs have chosen to proceed on both grounds -- due process and equal protection. Although the Court concludes that plaintiffs' claims may more appropriately be predicated on a violation of equal protection, it will discuss both equal protection and due process.

 III.

 No provision of the Constitution expressly mandates the procedures a state must follow in filling vacancies in its legislature. See Rodriguez, 457 U.S. at 5, 102 S. Ct. at 2197 . "Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen." Gregory v. Ashcroft, U.S. , 115 L. Ed. 2d 410, 111 S. Ct. 2395, 2401 (1991) (citing Boyd v. Thayer, 143 U.S. 135, 161, 36 L. Ed. 103, 12 S. Ct. 375 (1892). Indeed, there is no requirement that a vacancy be filled by an election. See Rodriguez, 457 U.S. at 5, 102 S. Ct. at 2197 . Instead, states have wide latitude concerning the method and timing of filling legislative vacancies, and courts have routinely upheld various schemes. See Id. (upholding Puerto Rico statute that vests a political party with the power to fill an interim vacancy in the Puerto Rico Legislature); Lynch, 682 F.2d at 95 (upholding Illinois election law that provides for the Mayor to fill an aldermanic vacancy by appointment); Trinsey, 941 F.2d at 234 (upholding Pennsylvania statute which did not require the Commonwealth to hold a primary election before a general election to fill a vacancy in the United States Senate); Valenti v. Rockefeller, 292 F. Supp. 851, 866 (S.D.N.Y. 1968), aff'd 393 U.S. 405, 89 S. Ct. 689, 21 L. Ed. 2d 635 (1969) (a three-judge federal court, rejecting the argument that the Seventeenth Amendment required a state to fill an interim vacancy in the United States Senate by election as soon as possible, stated the Constitution confers "a reasonable discretion upon the states concerning the timing and manner of conducting vacancy elections").

 Provided that the state statute at issue does not restrict access to the electoral process or discriminate among classes of voters or political parties, courts apply a "deferential standard of review over a state's choice of the manner in which to fill legislative vacancies." Trinsey, 941 F.2d at 234; see also Lynch, 682 F.2d at 96 ("method chosen by the state legislature for filling vacancies is entitled to substantial deference"). Under this standard of review, a state's choice as to how to fill legislative vacancies, and when to schedule an election, is constitutional "so long as legitimate interests rationally support the scheme." Id. at 97; Mason v. Casey, 1991 WL 185243 (E.D. Pa. 1991) (applying rational basis review in upholding the Commonwealth's right to set the date for an election to fill a vacancy for the United States House of Representatives under section 2777 of Pennsylvania's Election Law, 25 Pa.Stat.Ann. § 2777). "Courts must ask whether the state rationally could have believed that the distinction drawn would promote a legitimate government objective." Philadelphia Police & Fire Ass'n v. Philadelphia, 874 F.2d 156, 163 (3d Cir. 1989). Plaintiffs bear the burden of proof on this issue. Id.

 IV.

 Plaintiffs argue the Court should apply strict scrutiny review in assessing the constitutionality of section 2778 because, they contend, this is a case about the right to vote, a fundamental right, which triggers heightened review. In support of their position, plaintiffs rely on Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966) and Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969), where state voting statutes were struck down under strict scrutiny review. Defendants Singel and Mitchell and intervenor DeWeese, on the other hand, contend that because section 2778 applies to all special legislative elections, providing all Pennsylvanians the same ability to vote for ...


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