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PATRIOT PARTY OF PENNSYLVANIA v. MITCHELL

June 30, 1993

THE PATRIOT PARTY OF PENNSYLVANIA and ROBERT B. SURRICK
v.
BRENDA MITCHELL, Secretary of the Commonwealth of Pennsylvania; WILLIAM P. BOEHM, Commissioner of the Bureau of Commissions, Elections, and Legislation



The opinion of the court was delivered by: BY THE COURT; EDWARD N. CAHN

 CAHN, C.J.

 This is a case that focuses on the tension between the requirements of a state's ballot access laws and the constitutional rights of a minor political party and its candidates. The state legislature, which enacts the ballot access laws, is comprised primarily of major party politicians. The tension exists because these laws may become so restrictive and burdensome that they impinge upon a minor party's or candidate's rights under the Equal Protection Clause and/or the First Amendment.

 The Patriot Party of Pennsylvania ["Patriot Party"] and Robert B. Surrick ["Surrick"], the plaintiffs, filed this civil rights suit under 42 U.S.C. § 1983 to (1) challenge the constitutionality of two of Pennsylvania's ballot access provisions, which are codified at 25 Pa. Cons. Stat. Ann. § 2872.2, and 25 Pa. Cons. Stat. Ann. § 2911(b), respectively; *fn1" and (2) have Surrick's name placed on the ballot for the general election to be held on November 3, 1993 for the office of Justice of the Supreme Court of Pennsylvania. Initially, the plaintiffs sought a preliminary injunction. At the hearing, however, the parties agreed not to pursue preliminary injunctive relief, and instead proceeded with a final hearing on the merits. In addition to the evidence adduced at the hearing, the parties have submitted post-hearing briefs. *fn2"

 I make the following:

 I. FINDINGS OF FACT

 1. PENNSYLVANIA'S STATUTORY SCHEME

 Pennsylvania's statutory scheme, which is known as the Pennsylvania Election Code ["Election Code"], is codified at 25 Pa. Cons. Stat. Ann. §§ 2600-3573. Under the code, a political group is classified as either: 1) a political body, see 25 Pa. Cons. Stat. Ann. § 2911; or 2) a political party. The criterion that differentiates a political body from a political party is set forth in 25 Pa. Cons. Stat. Ann. § 2831. Specifically, if the political group's candidates received less than 2% of the largest vote cast in the most recent general election, the group is classified as a political body. If they receive 2% (or more), it is classified as a political party. There are also two classes of political parties. A political party is categorized as either 1) a major political party; or 2) a minor political party. A political party is "major" if it consists of 15% (or more) of the total registered voters in the Commonwealth. A political party is "minor" if its enrollment is less than 15% of the registered voters in the Commonwealth. *fn3"

 Access to the ballot in the general election for a political group's candidate depends upon its classification. A major political party uses the primary election to determine who will represent it in the general election. To gain access to the primary ballot, a member of the party must obtain signatures on forms known as nomination petitions. The number of signatures required depends upon the office that the candidate seeks. See 25 Pa. Cons. Stat. Ann. § 2872.1. For example, a member of a major party who seeks the office of President of the United States or Governor of Pennsylvania must obtain two thousand signatures. A member of a major party who seeks the office of Justice of the Pennsylvania Supreme Court must procure one thousand signatures. *fn4" The candidate who receives a plurality of votes of the major party electors in the primary shall be the candidate for that major party at the general election. See 25 Pa. Cons. Stat. Ann. § 2882.

 Minor political parties and political bodies, on the other hand, do not use the primary process. Instead, access to the general election ballot for members of those entities is governed by 25 Pa. Cons. Stat. Ann. § 2911. Although § 2911 is titled "Nominations by political bodies," it also governs the procedures to be used by minor political parties. 25 Pa. Cons. Stat. Ann. § 2872.2 specifically provides that "minor political parties shall nominate all of their candidates for the offices to be filled at the ensuing November election . . . in accordance with the requirements of [§ 2911]. . . ." Under § 2911(a) a candidate may gain access to the general election ballot if the candidate obtains the requisite number of signatures on documents known as nomination papers. Section 2911(b) designates the requisite number to be "at least equal to two per centum of the largest entire vote cast for any elected candidate in the State at large at the last preceding election at which Statewide candidates were voted for."

 2. On January 7, 1993, defendant Brenda Mitchell, Secretary of the Commonwealth of Pennsylvania, informed the County Boards of Elections that Pennsylvanians for Perot was a certified political party in the Commonwealth of Pennsylvania because 902,667 Pennsylvanians voted for Ross Perot in the 1992 Presidential Election. Additionally, defendant William P. Boehm, Commissioner of the Bureau of Commissions, Elections and Legislation notified the County Election Contact Persons that the Pennsylvanians for Perot Party could not nominate candidates for office in the primary election because its voter registration was less than 15% of the combined statewide registration.

 3. In accordance with Ross Perot's wishes not to have his name used in connection with any political party, Pennsylvanians for Perot changed its name to the New Patriot Party.

 4. On January 23, 1993, the New Patriot Party of Pennsylvania changed its name to the Patriot Party of Pennsylvania.

 5. The Patriot Party has approximately one thousand one hundred party members.

 6. The Patriot Party is a minor political party as that term is defined in 25 Pa. Cons. Stat. Ann. § 2872.2(a).

 7. Plaintiff Surrick is currently an attorney, who has been licensed to practice law in the Commonwealth of Pennsylvania since 1961. In addition to his private practice, Surrick has periodically served in the public sector. He has been a municipal solicitor for numerous municipalities on a full-time basis and as special counsel. He has also served as a Special Assistant Attorney General and as a member of the Judicial Inquiry and Review Board.

 8. Surrick has long been an avid supporter of judicial reform and has submitted to every member of the Pennsylvania Legislature a pamphlet that he compiled in January of 1993. On two occasions Surrick has testified before the Pennsylvania House Judiciary Committee regarding judicial reform.

 9. In 1989, Surrick attempted to secure a spot on the general election ballot as an independent candidate for Justice of the Supreme Court of Pennsylvania. This attempt failed because Surrick was unable to procure the number of signatures required under the Election Code of Pennsylvania.

 10. Surrick is now a member of the Patriot Party, and at a convention held on March 1, 1993, the Patriot Party unanimously nominated him to be its nominee for Justice of the Supreme Court of Pennsylvania.

 11. Surrick, as a candidate of a minor political party, will be placed on the general election ballot if he obtains the number of signatures on nominating papers as required by 25 Pa. Cons. Stat. Ann. § 2911(b).

 12. State treasurer Catherine Baker Knoll received more votes, 2,832,031, than any other candidate at the last general election.

 13. Two per centum of 2,832,031 is 56,641, which is the number of signatures that Surrick must receive in order to appear on the ballot. 14. The highest number of votes received and two per centum of that figure for the past fourteen years is as follows: YEAR HIGHEST VOTE SIGNATURES REQUIRED 1978 1,966,042 39,321 1979 1,234,045 24,681 1980 2,261,872 45,237 1981 1,121,090 22,421 1982 1,872,784 37,456 1983 1,379,975 27,599 1984 /--- //-- 1985 1,059,489 21,190 1986 1,906,387 38,128 1987 1,278,377 25,568 1988 2,300,087 46,002 1989 1,242,867 24,857 1990 2,065,244 41,305 1991 1,458,594 29,172 1992 2,832,0311,458,594 56,640

 15. For 1993, the first day nomination papers could be circulated was March 10, 1993. *fn5"

 16. For 1993, nomination papers may be circulated up to and including August 2, 1993.

 17. The Patriot Party notified the Commonwealth of Pennsylvania before March 10, 1993, that it needed nomination papers for Surrick.

 18. The nomination papers were first provided by the Commonwealth of Pennsylvania to the Patriot Party on April 9, 1993.

 II. DISCUSSION The plaintiffs invite this court to invalidate portions of the Election Code for a variety of reasons. First, they argue that under a theory of "retention" the Patriot Party should not be required to meet continually the signature requirement imposed by § 2872.2 and § 2911. Second, they contend that the requirement that an organization obtain 15% of the registered voters in order to become a major political party is unconstitutional. Third, they contend that the 2% signature requirement for political bodies and minor political parties does not further Pennsylvania's state interests. Finally, they contend that the totality of the legislative scheme operates to bar impermissibly the ...


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