and then again, and again until [the requirement] did not exist at all." Libertarian Party of Florida, 710 F.2d at 790.
In this case, the 15% threshold requires a new political party to work exceedingly hard to attain an automatic position on the general election ballot. The requirement, however, is similar to that imposed by Georgia in Jenness. In that case, a political organization gained automatic access to the general election ballot only if one of its candidates received 20% or more of the votes in the most recent gubernatorial or presidential election. Otherwise, the political organization would have to secure signatures of 5% of the number of registered voters at the last general election. Jenness, 403 U.S. at 432-33. The Court upheld the constitutionality of the process. Jenness, 403 U.S. at 440-442. While there is a distinction between receiving a percentage of votes to qualify automatically for the general election ballot and having an organization obtain a percentage of the registered voters in the state to qualify, such a distinction is not of constitutional magnitude.
The Pennsylvania law neither invidiously discriminates against minor political parties, nor freezes the status quo. Small political parties are still free to associate and unite their efforts in order to garner signatures for the nomination papers.
Finally, it should be noted that the 15% requirement, at worst, precludes automatic placement on the general election ballot. It, however, in no way stymies ballot access to all candidates who do not belong to a major political party. Because the Patriot Party has only 1100 members, which is 0.018% of the total number of registered voters in Pennsylvania,
the Commonwealth may reasonably require the party's candidates to demonstrate additional support before placing them on the general election ballot. Any serious candidate of a minor political party or political body may avail himself of the nomination papers route to secure a spot on the general election ballot. See American Party of Texas, 415 U.S. at 787 (observing that "hard work and sacrifice are the lifeblood of any political organization").
The court is aware that Pennsylvania's approach to a certain extent creates "Catch-22,"
and that a different process or a lower percentage would also further Pennsylvania's interests. Nevertheless, "the wisdom of [the law] may not color [the court's] task of constitutional adjudication." Clements, 457 U.S. at 973. This court holds that the 15% rule is demanding, but that it is also within the outer limit of the constitutional realm for purposes of equal protection and freedom of association.
3) THE 2% RULE
At the hearing, the plaintiffs also urged that the 2% rule is violative of the Constitution because as applied to the Patriot Party it does not further Pennsylvania's interest in avoiding ballot clutter. See Transcript at pp. 70-78;
Plaintiffs' Post-Hearing Memo at p.7; Brief of Plaintiff Robert B. Surrick at p.5. Under § 2911, access to the general election ballot may be secured by obtaining signatures of 2% or more of the largest number of votes cast in the last preceding election. The plaintiffs do not challenge the facial validity of the 2% requirement for nomination papers. Instead, they object that because the law requires candidates of minor political parties to refer to the most recent election, and because statewide judicial elections in Pennsylvania always follow either presidential or gubernatorial elections, access to the general election ballot for judicial candidates is unduly difficult.
The plaintiff's decision not to challenge the facial validity of Pennsylvania's 2% requirement is a wise one. In Jenness, the Supreme Court upheld a law that required a candidate of a political organization to garner signatures totaling 5% in order to obtain access to the general election ballot. Thus, a fortiori, it is beyond dispute that Pennsylvania's 2% requirement is facially valid. Moreover, the validity of the 2% rule was recently challenged and upheld by the court in the Middle District of Pennsylvania. See Perry v. Grant 775 F. Supp. 821, 826-27 (M.D. Pa. 1991). Nevertheless, the Supreme Court has on two separate occasions invalidated facially valid ballot access laws because of their application to a political party. See Illinois State Board of Elections and Norman, supra.
In Illinois State Board of Elections, candidates of new political parties had to obtain 25,000 signatures to appear on the general election ballot in statewide elections; however for offices of political subdivisions, they had to obtain 5% of the number of persons who voted at the previous election for offices of the particular subdivision to secure a position. Illinois State Board of Elections 440 U.S. at 175-76. The 5% standard exacted fewer than 25,000 signatures in every political subdivision, except for Chicago and Cook County. Illinois State Board of Elections 440 U.S. at 177 n.3. In those two areas, application of the law produced the anomalous result that more signatures were needed for local offices than for statewide offices. The law was found to be unconstitutional as applied to those subdivisions. The Court reasoned that the Illinois legislature had determined that its legitimate interest in avoiding ballot clutter would be satisfied by the 25,000 signature requirement. Illinois State Board of Elections 440 U.S. at 177. However, it could not discern, nor could the state advance, a reason why more votes would be necessary for a local office. Illinois State Board of Elections, 440 U.S. at 186-87.
In response to the Court's ruling, the Illinois legislature capped the 5% rule at 25,000 signatures, but the legislature also required that 5% rule be met in each district of the political subdivision. Norman, 112 S. Ct. at 702. The effect of the provision required candidates in Cook County to acquire 50,000 signatures because the County was comprised of two very large districts. Norman, 112 S. Ct. at 707-08. The Supreme Court again struck down the statute because it retained the same "constitutional flaw at issue in Socialist Workers." Norman, 112 S. Ct. at 707.
In this case, the defendants do not attempt to distinguish this case from the Supreme Court cases. Instead, they contend that Perry, 775 F. Supp. at 827-28, is controlling. See Defendants' Reply Brief at p.10; Defendants' Brief in Opposition to Plaintiffs' Motion for a Preliminary Injunction at p. 19. In that case, the plaintiffs claimed, inter alia, that the 2% rule was unreasonably burdensome as applied because the number of signatures required for a senatorial candidate in a particular election was higher than it had been previously. The court correctly held that a fluctuation in the number of signatures required does not render the 2% rule unconstitutional. Perry 775 F. Supp. at 828. The court in Perry relied upon Rainbow Coalition v. Oklahoma State Election Board, 844 F.2d 740, 744 (10th Cir. 1988).
In that case, in order to become a new political party, an organization had to obtain signatures equalling 5% of the number of votes cast in the most recent gubernatorial or presidential election. The gubernatorial and presidential election alternated every two years. Rainbow Coalition, 844 F.2d at 742. Because more people voted in presidential than gubernatorial elections, the number of signatures required to form a party in a gubernatorial year was larger than the amount required to form a party in the presidential year.
The court upheld the law because, unlike Illinois State Board of Elections, the statute furthered a legitimate state interest. Rainbow Coalition, 844 F.2d at 744. The court concluded that the most recent voter turnout was the best gauge of how many voters were interested in joining a new political party, and therefore was a legitimate state interest. Rainbow Coalition, 844 F.2d at 744.
This case is clearly distinguishable from the facts in Perry or Rainbow Coalition. In those cases the gravamen of the complaint was that the treatment of the same statewide office or political party unconstitutionally varied from year to year. In this case, the plaintiffs do not attack the 2% requirement because a judicial candidate in Pennsylvania will need a different number of signatures in 1993 than he did in 1991. The thrust of their argument is that it is continually much more difficult for a minor party judicial candidate to gain access to the general election ballot than it is for a minor party presidential or gubernatorial candidate.
To determine if the 2% rule as applied to any judicial candidate of a minor political party or political body is unconstitutional it is necessary to examine the "nature, extent and likely impact" of the law. Storer, 415 U.S. at 738. This determination, especially in the context of an "as applied" challenge, cannot be determined in a vacuum. "To assess realistically whether the law imposes excessively burdensome requirements upon [third party] candidates it is necessary to know . . . critical facts. . . ." Storer, 415 U.S. at 738. In Storer, the Court remanded the case to the district court because the evidentiary record did not contain enough information for it to determine whether the 5% signature requirement was unduly burdensome. Storer, 415 U.S. at 738-40. This record, however, is replete with facts that enable this court to make a determination.
Over the past eight years there have been four judicial elections
and four presidential or gubernatorial elections. Under the 2% rule, as the table
shows, the signatures required to obtain access to the general election ballot for a judicial position has been strikingly higher. Thus, on average, in the past four elections for each category, judicial candidates have needed to secure 45,519 signatures to gain access to the general election ballot, while presidential or gubernatorial candidates have needed to secure 25,197 signatures. Indeed, the lowest number of votes needed for a judicial office in that period is still approximately 31% higher than the largest number of votes needed for a presidential or gubernatorial office. Similar results occurred for the elections from 1978 through 1983. In those years, the average number of signatures required in an even year was 40,719, while the number for odd years was 24,900.
This disparity is even more disturbing when compared to the number signatures that a candidate of a major political party must obtain to get on the primary ballot. Under 25 Pa. Cons. Stat. Ann. § 2872.1, a presidential or gubernatorial candidate must obtain 2,000 valid signatures on a nominating petition to be placed on the primary ballot, while a candidate for the Supreme Court, Superior Court, or Commonwealth Court must obtain only 1,000 signatures. The Pennsylvania legislature has therefore determined that, for purposes of access to the primary ballot, candidates of major political parties who seek a judicial office must obtain one-half the amount of signatures that candidates who seek President of the United States or Governor of Pennsylvania do. Yet the effect of § 2911(b) requires candidates of minor political parties who run for a judicial office to obtain substantially more signatures than those minor party candidates who seek the office of President of the United States or Governor of Pennsylvania. Surely, if the legislature intended that a judicial candidate of a major party encounter an easier path to ultimately qualify for the general election ballot, it would intend a similar result for judicial candidates of minor political parties.
Ballot access laws that appear to arbitrarily discriminate against minor political parties have been subjected to strict scrutiny. Thus, in the absence of a compelling state interest, see Illinois State Elections Board, 440 U.S. at 186, or the use of the most narrowly tailored means to advance a state interest, see Norman, 112 S. Ct. at 708, it is not constitutional to require candidates of minor political parties to obtain more signatures for local offices than for state offices. Therefore, it must not be constitutional under the Equal Protection Clause to require them to obtain a greater number of signatures for a less significant office
than for a more significant one, especially where the opposite is true for major party candidates.
The Commonwealth has not advanced any interests that tend to support this peculiar result. On the contrary, at least one other jurisdiction has found that a state has a substantial interest in holding Senate vacancy elections only in even-numbered years because significantly fewer people voted in odd-numbered years. Valenti v. Rockefeller, 292 F. Supp. 851, 859 (S.D.N.Y. 1968), aff'd, 393 U.S. 404, 405, 406, 21 L. Ed. 2d 635, 89 S. Ct. 693 (1969) (cited with approval in Trinsey, 941 F.2d at 233). Thus, this interest would be better served if the legislature adopted a different mechanism to demonstrate support for a judicial candidate of a minor political party. To that end, there appear to be a variety of less intrusive ways to advance the Commonwealth's interest in having an uncluttered ballot. For example, the Commonwealth could cap the amount of signatures that judicial candidates need at whatever number was required for the most recent gubernatorial or presidential third party candidate. It could also base the 2% number on the most recent judicial election. A third option could be to substitute for the percentage a hierarchical scale of fixed numbers, which would demonstrate a significant modicum of support, in a fashion similar to § 2872.1. Accordingly, this court will arrange a hearing forthwith to determine an appropriate remedy. See Transcript at pp. 135-36.
4) THE TOTALITY OF PENNSYLVANIA'S SCHEME
It is also suggested by the plaintiffs that overall scheme of the Pennsylvania Election Code unjustifiably favors the Democratic and Republican parties. The totality concept is "applicable only in the sense that a number of facially valid provisions of election laws may operate in tandem to produce impermissible barriers to constitutional rights." Storer, 415 U.S. at 737. In Williams, the Court found that the totality of the Ohio laws invidiously discriminated against third parties in violation of the Equal Protection Clause. Williams, 393 U.S. at 34. In that case Ohio law required new political parties to signatures totaling 15% of the number of ballots cast in the last preceding gubernatorial election. The petitions containing the signatures had to be filed no later than February 7, 1968, the year of the election. After that was accomplished, the state imposed on third parties a "Procrustean requirement of establishing elaborate primary election machinery." Jenness, 403 U.S. at 438 (citing Williams, 393 U.S. at 25 n.1). Pennsylvania's procedures do not approach the severity of the restrictions in Williams. First, the window of opportunity for a minor political party's candidates to obtain the necessary signatures is much greater. Second, the nominating papers may be signed by any qualified elector of the State. See 25 Pa. Cons. Stat. Ann. § 2911(c). Third, once the constitutional deficiencies with § 2911(b) are cured, minor political party candidates will not have to obtain an unreasonable number of signatures. Fourth, after the requisite number of signatures are secured there are no hurdles that prevent access to the general election ballot. In short, the Election Code does not permit Democrats and Republicans to monopolize the ballot.
III. CONCLUSIONS OF LAW 1. This court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. §§ 1331, 1343.
2. This court has in personam jurisdiction over the parties who have appeared in person and through counsel.
3. Proper venue lies in this jurisdiction.
4. Abstention is inappropriate in this case.
5. The statutory requirement that minor political parties and their candidates must continually re-establish their support does NOT render 25 Pa. Cons. Stat. Ann. § 2872.2 unconstitutional.
6. The 15% registration requirement contained in 25 Pa. Cons. Stat. Ann. § 2872.2 is NOT unconstitutional.
7. 25 Pa. Cons. Stat. Ann. § 2872.2 in combination with 25 Pa. Cons. Stat. Ann. § 2911(b) is unconstitutional as applied to the Patriot Party and Surrick because the 2% signature requirement on the nomination papers violates the Equal Protection Clause.
AND NOW, this 29th day of June, 1993, upon consideration of the testimony adduced at the final hearing on May 21, 1993, all pre-hearing and post-hearing briefs filed by the parties, and for the reasons set forth in the accompanying Opinion, IT IS ORDERED that:
1) 25 Pa. Cons. Stat. Ann. § 2911(b) is UNCONSTITUTIONAL as applied to the plaintiffs because the 2% signature requirement violates the Equal Protection Clause.
2) All other provisions of the Pennsylvania Election Code that have been challenged by the plaintiffs are NOT UNCONSTITUTIONAL.
3) A hearing will be held to determine an appropriate remedy on July 6, 1993, at 10:00 A.M. in Courtroom 17A, United States Courthouse, Philadelphia, Pennsylvania.
BY THE COURT:
Edward N. Cahn, C.J.