### 1999 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-30-1999 

# P a tr iot P a r t y Al ghn

y v . Al ghn y C t y D ept

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-3677,97-3359

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1999

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1999 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" P a tr iot P a r t y Al ghn

y v . Al ghn y C t y D e pt " (1999). 1999 D e cisio n s

. P a pe r 85.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1999/85Filed March 30, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96-3677 and 97-3359

REFORM PARTY OF ALLEGHENY COUNTY

v.

ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS; MARK WOLOSIK, Director of the Allegheny County Department of Elections,

Appellants.

On Appeal from the United States District Court for the Western District of Pennsylvania (Civil Action No. 93-cv-01884 and 97-3359) [District Judge: Honorable William L. Standish

Argued: December 12, 1997

Before: NYGAARD, ALITO, Circuit Judges and DEBEVOISE, District Judge1

Reargued January 13, 1999

Before: BECKER, Chief Judge, SLOVITER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, RENDELL and ROSENN, Circuit Judges

(Opinion filed: March 30, 1999)

___________________________________________________ ______________

1. The Honorable Dickinson R. Debevoise, Senior Uni ted States District Judge for the District of New Jersey, sitting by de signation.Kerry Fraas

County Solicitor Allan J. Opsitnick (Argued) Assistant County Solicitor

Michael McAuliffe Miller Assistant County Solicitor Allegheny County Law Dept.

300 Ft. Pitt Commons

445 Ft. Pitt Blvd. Pittsburgh, PA 15219

Attorneys for Appellants

Cornish F. Hitchcock, Esquire (Argued) Public Citizen Litigation Group 1600 20th Street, N.W. Washington, D.C. 20009-1001

Sarah E. Siskind, Esquire Miner, Barnhill & Galland 44 East Mifflin Street, Suite 803 Madison, WI 53703

Jonathan B. Robison, Esquire 712 Allegheny Building

429 Forbes Avenue Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

In this en banc review, we must determine to what e xtent our earlier decision in Patriot Party of Allegheny County v. Allegheny County Dep't of Elections, 95 F.3d 253 (3 d Cir. 1996) (Patriot Party I), remains good law in the wa ke of the Supreme Court's decision in Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364 (1997). In Patriot Party I, we held that the Pennsylvania statutes at issue, which in

certain local elections bar cross-nomination of can didates by minor parties, but not by major parties, violate d the

2Patriot Party's2 right to freedom of association un der the

First and Fourteenth Amendments, as well as its rig ht to equal protection of the laws under the Fourteenth

Amendment. We now conclude that the decision in Timmons, in upholding a Minnesota "anti-fusion" sta tute against a First Amendment attack, does not undercut our equal protection analysis in Patriot Party I. We wi ll, therefore, reaffirm our holding that the Pennsylvan ia statutes here, as applied to the local elections in question, violate the Patriot Party's right to equal protecti on of the

laws.

I. Background

This en banc review implicates two separate but rel ated cases. In both cases, the Patriot Party challenged the constitutionality of Pennsylvania's ban on minor pa rty "cross-nominations" in certain local offices, 25 Pa . Stat. Ann. SS 2936(e) and 2911(e)(5), as a violation of t he Patriot Party's right to freedom of association and its rig ht to the equal protection of the laws. In essence, the chall enged statutes prevent minor political parties from cross nominating a candidate for certain local offices wh en that candidate has already been nominated for the same o ffice by another political party. The major parties, howe ver, are allowed to engage in cross nomination or "fusion" f or those local offices.3 As a consequence, while Pennsylvani a prohibits all parties from cross-nominating the sam e person for most state offices, it makes an exception in pr imary elections for five local offices,4 in which major parties are

___________________________________________________ ______________

2. By Order dated January 14, 1999, this court gran ted plaintiff 's motion to amend the caption to change the name of P atriot Party of Allegheny County to Reform Party of Allegheny Count y. In this opinion, we will continue to use the former appellation.

3. "Fusion" is "the nomination by more than one pol itical party of the same candidate for the same office in the same gene ral election." Timmons, 117 S. Ct. at 1367 n.1 (citing Twin Cities Area New Party v. McKenna, 73 F.3d 196, 197-98 (8th Cir. 1996)).

4. The five offices are "judge of a court of common pleas, the Philadelphia Municipal Court or the Traffic Court of Philadelphi a, . . . school

director in a district where that office is elective, or . . . justice of the peace." 25 Pa. Stat. Ann. S 2870(f).

3permitted to cross-nominate each other's candidates , but

minor parties are prohibited from so doing.5

The undisputed facts of the first case (No. 97-3359 ) are set forth in Patriot Party I, but we summarize them briefly here. The case stemmed from the Patriot Party's att empt to nominate Michael Eshenbaugh as a candidate for scho ol director in Pennsylvania's North Allegheny School D istrict in the November 1993 general election. This nominat ion was barred by the application of the fusion ban, be cause Eshenbaugh had already sought the nomination of bot h major parties in the May 1993 municipal primary, in which

he had secured the nomination of the Democratic Par ty, but not of the Republican Party.

___________________________________________________ ______________

5. The court in Patriot Party I explained the struc ture of the challenged

statutes:

As a minor political party, the Patriot Par ty does not file "nomination petitions" for the primary elect ions, as do the major political parties. Instead, the Patriot Part y, like other minor political parties, must file "nomination papers" conta ining the number of signatures specified by Pennsylvania law. 25 Pa. Stat. Ann. S 2872.

Section 2936(e) of the Pennsylvania Code pr ohibits the filing of a nomination paper "if the candidate named the rein has filed a nomination petition for any public office fo r the ensuing primary,

or has been nominated for any such office by no mination papers previously filed. . . ." Furthermore, S 2911 (e)(5) requires that

[t]here shall be appended to each nomination paper ... an affidavit of each candidate nominated therein, stating -- . .. (5) that his name has not been presented as a candidate b y nomination petitions for any public office to be voted for at the ensuing primary election, nor has he been nominated by any other nomination papers filed for any such office.

. ..

The above sections of the election code app ly only to the "nomination papers" filed by minor parties a nd not to "nomination petitions" filed by the major parties partic ipating in the primaries. Thus, while S 2870(f) of the Pennsylvania el ection code expressly allows the major parties to cross-nominate c andidates for school director, SS 2936(e) and 2911(e)(5) prevent such cross-nomination by minor political parties.

Patriot Party I, 95 F.3d at 256 n.1.4In February 1994, the Patriot Party filed suit for

declaratory and injunctive relief under 42 U.S.C.S 1983 against the Allegheny County Department of Election s and its director (collectively, "the Department"), alle ging that the two relevant sections of the Pennsylvania Election Code violate the Patriot Party's right of free associati on under the First and Fourteenth Amendments, as well as its rig ht to equal protection of the laws under the Fourteenth Amendment. The District Court granted summary judgm ent for the Department. On appeal, a divided panel of t his court reversed the District Court's ruling on September 9 , 1996, in Patriot Party I. On November 4, 1996, we denied the Department's petition for rehearing en banc. The Department did not seek a writ of certiorari. On re mand, the District Court entered an order granting declar atory and injunctive relief in favor of the Patriot Party

.

Four months later, on April 28, 1997, the Supreme C ourt issued its decision in Timmons. As a result, on Apr il 30, the Department filed a motion for relief from judgment in this case pursuant to Fed. R. Civ. P. 60(b). The Distric t Court denied the requested relief. The Department appeale d that order, and another panel of this court affirmed it in an opinion filed June 15, 1998 ("Patriot Party II"), w hich we will

discuss further in connection with the second case.

The undisputed facts of the second case (No. 96-367 7)

also involve a nomination to the office of school d irector in the North Allegheny School District. On May 13, 199 5, the Patriot Party selected several candidates for this office, including Barbara Childress. On May 16, 1995, befor e the municipal primary elections, Childress perfected he r nomination as one of the Patriot Party's candidates by filing nomination papers with the Department.

Childress also sought the nominations of the Republ ican and Democratic parties, and in the municipal primar y she won both of these nominations. On May 24, 1995, the Department informed Childress that, since she had previously filed nomination petitions seeking the nominations of the major parties, she was prohibite d from seeking the nomination by a minor party.

The Patriot Party brought an action pursuant to 42 U.S.C. S 1983, seeking injunctive and declaratory r elief,

5alleging once again that the two pertinent sections of the

Pennsylvania Election Code violate the Patriot Part y's right of free association and its right to equal protecti on of the laws. The Department filed a motion to dismiss purs uant to Fed. R. Civ. P. 12(b)(6), while the Patriot Partyfi led a motion for summary judgment under Fed. R. Civ. P. 5 6. In October 1996 (several months before Timmons was decided), the District Court, relying on this Court 's decision in Patriot Party I, granted the Patriot Party's mot ion for summary judgment, denied the Department's motion to dismiss, and entered an order granting the requeste d injunctive and declaratory relief. On appeal, that order was also affirmed in Patriot Party II. In Patriot Party II, the panel recognized that Patriot Party I had held that the Pennsylvania laws violated the equal protection rig hts of the Patriot Party. The panel concluded that it was bound by Patriot Party I insofar as the equal protection hol ding had not been overruled by Timmons.

On June 30, 1998, the Department filed a petition f or rehearing en banc, asking us to decide whether Patr iot Party I (and by extension, Patriot Party II ) has b een overruled by Timmons. On July 22, 1998, we granted the petition for rehearing en banc. For the reasons we set out below, we conclude that Patriot Party I has not bee n overruled to the extent that it held that the Patri ot Party's right to equal protection of the laws was violated by the ban on minor party fusion in the local elections in que stion.

II. Patriot Party I and Timmons

To begin our discussion, it is helpful first to rev iew the holdings in Patriot Party I and in Timmons. In Patr iot Party I, a panel of this court held that 25 Pa. Stat. Ann

. SS 2936(e) and 2911(e)(5), which prohibit minor par ties, but not major parties, from cross-nominating candidates in certain local elections, violate minor parties' rig hts to freedom of association and equal protection of the laws.

In its freedom of association analysis, the Patriot Party I panel applied the standard set forth in Supreme Cou rt precedent, including Eu v. San Francisco County Dem ocratic Cent. Comm., 489 U.S. 214, 222 (1989), and Anderson v.

6Celebrezze, 460 U.S. 780, 789 (1983). The panel rei terated

the standard:

To determine whether a state election law vi olates the U.S. Constitution, we first examine whether the challenged law burdens rights protected by t he First

and Fourteenth Amendments. If the law does b urden protected rights, we must gauge the characte r and magnitude of the burden on the plaintiff and weigh it against the importance of the interests that the state proffers to justify the burden. We examine n ot only the legitimacy and strength of the state's proff ered interests, but the necessity of burdening th e plaintiff's rights in order to protect those interests. If the burden on the plaintiff's rights is severe, the sta te's interest must be compelling and the law must be narro wly

tailored to serve the state's interests.

Patriot Party I, 95 F.3d at 258 (citations omitted)

.

The panel, applying the standard, concluded that th e Pennsylvania statutes infringed upon the Patriot Pa rty's right of free association in two ways: "First, the restriction prevents the Party from nominating the standard bea rer who the Party thinks will `most effectively advance [its] program and platform.' Second, the challenged elect ion laws deprive the Patriot Party of an opportunity to `fuse' its votes with those of a major party and thereby to ma ke inroads into the political process." Id. Because th e panel found these burdens to be severe, it held that Penn sylvania "must demonstrate that these laws are narrowly tail ored to serve a compelling state interest." Id. at 264. The panel concluded, however, that the justifications offered by the Department did not meet this test. Id. Specifically , the Department had argued that four important state int erests were served: "(1) preventing `sore loser' candidaci es; (2) preventing individual candidates from `monopolizing ' the ballot and causing voter confusion; (3) preventing a candidate from `bleed[ing] off votes of independent voters to bolster his or her major party endorsement'; and (4 ) encouraging new candidates to run as independents." Id. The panel examined each of these interests and foun d that they did not bear scrutiny. Id. at 264-68.

7The panel also held that the challenged statutes vi olate

minor parties' right to equal protection of the law s. The panel observed that the statutes facially discrimin ated between major and minor parties, and that in this r espect the case was distinguishable from the Minnesota sta tutes the Eighth Circuit Court of Appeals had considered in Timmons. Id. at 268. Relying on the principles and structure of the equal protection analysis in the S upreme Court's decision in Williams v. Rhodes, 393 U.S. 23 (1968), the panel examined whether the election laws create d

invidious distinctions or classifications. Patriot Party I, 95 F.2d at 269 (citing Williams, 393 U.S. at 30). The panel

delineated its task as follows: "we must measure th e totality of the burden that the laws place on the voting and associational rights of political parties and indiv idual voters against the justifications that the State offers to support the law." Id. (citing Williams, 393 U.S. at 34). Ap plying this analysis, the panel concluded that "Pennsylvania's decision to ban cross-nomination by minor parties and to all ow cross-nomination by major parties constitutes the t ype of `invidious discrimination' prohibited by the Fourte enth Amendment." Id. The panel noted that, by treating m inor and major parties differently, the statutes burdene d both minor parties and the voters that support them. Id. The panel reiterated its earlier conclusion that, in th e face of these unequal burdens, the Department had offered n o compelling justifications. Id. ("Pennsylvania impos es these unequal burdens on the right to vote and the right to associate without protecting any significant counte rvailing state interest.").

In Timmons, the Supreme Court upheld Minnesota laws that imposed a general ban on fusion candidacies. T he Court applied the same test that the panel had appl ied in Patriot Party I but concluded that the Minnesota la ws did not violate the right to freedom of association. As sessing the burdens placed on minor political parties' asso ciational rights, the Court rejected the argument that a seve re burden was imposed by the fact that a party might b e prevented from nominating a particular individual a s its standard bearer. Timmons, 117 S. Ct. at 1370 ("That a particular individual may not appear on the ballot as a particular party's candidate does not severely burd en that

8party's association rights."). The Court then rejec ted an

argument that the fusion ban imposed a severe burde n on minor parties' attempts to organize or develop poli tical alliances. Id. at 1371 ("Minnesota has not directly precluded minor political parties from developing a nd organizing. . . . Nor has Minnesota excluded a part icular group of citizens, or a political party, from parti cipation in the election process."). In sum, the Court conclude d the burdens on associational rights imposed by the fusi on ban "--though not trivial--are not severe." Id. at 1372

.

Having determined that the burdens were not severe, the Court proceeded to conduct a "less exacting review, " in which "a State's `important regulatory interests' w ill usually be enough to justify `reasonable, nondiscriminatory restrictions.' " Id. at 1370 (quoting Burdick v. Ta kushi, 504 U.S. 428, 434 (1992) (internal quote marks omitted) ). The Court reasoned that "the State's asserted regulator y interests need only be `sufficiently weighty to jus tify the limitation' imposed on the [minor party's] rights." Id. at 1372 (quoting Norman v. Reed, 502 U.S. 279, 288-89 (1992)). Although the Court declined to consider Minnesota's alleged interest in "avoiding voter con fusion," id. at 1375 n.13, the Court concluded that the burd ens imposed by the Minnesota's fusion ban on minor part ies' associational rights were "justified by `correspond ingly weighty' valid state interests in ballot integrity and political stability." Id. at 1375.

III. The Rule 60(b)(6) Motion

As a preliminary matter, we must determine if the District Court properly denied the Department's Fed . R. Civ. P. 60(b)(6) motion for relief from judgment fi led in Eshenbaugh's case.6 The panel in Patriot Party II a ffirmed the District Court's denial of the motion. We agree

.

We review a district court's denial of a Rule 60(b) motion

for abuse of discretion. Central W. Rental Co. v. H orizon

___________________________________________________ ______________

6. The Department moved for relief from judgment un der Rule 60(b)(4) and (6), but on appeal, they have abandoned the for mer, opting only for relief under Rule 60(b)(6).

9Leasing, 967 F.2d 832, 836 (3d Cir. 1992). An abuse of

discretion may be found when "the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987).

Relief under Rule 60(b)(6) "is available only in ca ses evidencing extraordinary circumstances." Martinez-M cBean v. Government of Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977) (quoting Stradley v. Cortez, 518 F.2d 488, 49 3 (3d Cir. 1975)). Furthermore, "[i]ntervening developmen ts in the law by themselves rarely constitute the extraordina ry circumstances required for relief under Rule 60(b)( 6)." Agostini v. Felton, 117 S. Ct. 1997, 2018 (1997). A s we will discuss below, the Supreme Court's decision in Timm ons did not overrule the holding of the Patriot Party I panel that the Pennsylvania statutes at issue violate the Equa l Protection Clause. Therefore, as the panel in Patri ot Party II recognized, no extraordinary circumstances exist th at would justify granting the Department's motion unde r Rule 60(b)(6).

Furthermore, to the extent that the Department is attempting to use its Rule 60(b)(6) motion as a mea ns of seeking review of our decision in Patriot Party I, a Rule 60(b)(6) motion may not be used as a substitute for an appeal. Martinez-McBean, 562 F.2d at 911. The Depar tment chose not to petition for certiorari in the Eshenba ugh case even though it was on notice that the Timmons case was then pending before the Supreme Court. Indeed, a pe tition for certiorari might have obviated the need for thi s en banc review. The Department cannot attempt to second-gue ss that decision now with its Rule 60(b)(6) motion.

For the above stated reasons, we find no abuse of

discretion in the District Court's denial of the Ru le 60(b) motion. The District Court properly concluded that the outcome in Eshenbaugh's case (No. 97-3359) could no t be reopened for further consideration.

IV. The Equal Protection Claim

We turn now to the Patriot Party's motion for summa ry judgment in Childress's case (No. 96-3677), the gra nting of

10which was affirmed by the panel in Patriot Party II . The

granting of summary judgment by a district court is subject to plenary review. American Med. Imaging Corp. v. S t. Paul Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir. 1991).

The primary issue before us is whether the Patriot Party's equal protection claim is still viable after Timmon s.7 Nothing in the Timmons opinion itself weakens the equal pro tection analysis of Patriot Party I, because no equal prote ction claim was asserted or considered by the Court in Ti mmons. The statutory scheme in Timmons differs from the Pennsylvania scheme in a manner crucial for the equ al protection analysis. Timmons involved an across-the -board ban on fusion by both major and minor parties. In c ontrast,the Pennsylvania statutes involve a ban on crossnomination that facially discriminates against mino r parties by allowing major parties, but not minor parties, t o crossnominate in certain circumstances. The Supreme Cour t in Timmons did not hold that states can treat minor pa rties in a discriminatory way. Indeed, in discussing the tes t for deciding whether state election laws violate First and

___________________________________________________ ______________

7. We have chosen not to address whether the Suprem e Court's opinion in Timmons eviscerates the associational rights ana lysis in Patriot Party I. In our current opinion, we hold only that 25 Pa. Stat. Ann. SS 2936(e) and 2911(e)(5) are unconstitutional because they vi olate a minor party's right to equal protection of the laws. Some degree of the associational rights analysis in Patriot Party I may remain viabl e because the Pennsylvania laws, in contrast to the Minnesota law s in Timmons, facially discriminate between major and minor parti es, thus exacerbating the burdens imposed on minor parties. Because, howe ver, our equal protection analysis is directed at the impact of th is same discriminatory language, we do not go on to examine it as it appli es to the right to

freedom of association.

Nevertheless, to the extent that it can be suggeste d that the associational rights analysis in Patriot Party I m ay have state-wide or circuit-wide implications for election processes, s ee Patriot Party I, 95 F.3d at 272 (Greenberg, J., dissenting) (arguing th at the majority's approach in Patriot Party I "leads to the conclusio n that Pennsylvania (and the other jurisdictions in this circuit) must permit cross-filing in

all elections"), we note that the Timmons decision, in ruling that a generally applicable anti-fusion law does not unconstitutiona lly infringe on associational rights, appears indeed to foreclose s uch a suggestion.

11Fourteenth Amendment associational rights, the Cour t

wrote:

Regulations imposing severe burdens on plain tiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, h owever, trigger less exacting review, and a State's " `important regulatory interests' " will usually be enou gh to justify " `reasonable, nondiscriminatory restriction s.' "

Timmons, 117 S. Ct. at 1370 (emphasis added). Thus, even though the Court held that the burdens posed by fus ion bans on parties and voters are not severe, the Cour t still maintained a requirement that the restrictions be reasonable and nondiscriminatory. Because the Pennsylvania law permits fusion by major parties, b ut prohibits fusion by minor parties, it is, on its fa ce, discriminatory.8

Moreover, the Court in Timmons did not overrule in any way its decision in Williams v. Rhodes, 393 U.S. 23 (1968), on which the Patriot Party I panel relied in its eq ual protection analysis. Rather, the Court cited Willia ms favorably. See Timmons, 117 S. Ct. at 1374 (citing Williams for the proposition that the State interest in the stability of its political system "does not permit a State to co mpletely insulate the two-party system from minor parties' o r independent candidates' competition and influence")

.

In Williams, the Supreme Court stated at the outset :

It is true that this Court has firmly establ ished the principle that the Equal Protection Clause d oes not make every minor difference in the applicati on of laws to different groups a violation of our Const itution. But

___________________________________________________ ______________

8. An argument could be made that the Court in Timm ons did in fact give states permission to treat minor parties differentl y. For example, the Court wrote that "the States' interest permits them to enact reasonable regulations that may, in practice, favor the tradit ional two party system." Timmons, 117 S. Ct. at 1374. This argument is dispo sed of, however, by the recognition that there is a difference between regulations that "in practice" favor a two party system and those that o n their face discriminate between major and minor parties. The P ennsylvania statutes discriminate on their face between major a nd minor parties.

12we have also held many times that `invidious '

distinctions cannot be enacted without a vio lation of the Equal Protection Clause.

Williams, 393 U.S. at 30. The Court went on to defi ne the applicable test: "In determining whether or not a s tate law violates the Equal Protection Clause, we must consi der the facts and circumstances behind the law, the interes ts which the State claims to be protecting, and the in terests of those who are disadvantaged by the classification." Id.9

As the panel in Patriot Party I explained,"[i]n Wil liams, Ohio election laws made it virtually impossible for new or small political parties to be placed on the state b allot for the selection of presidential and vice presidential candidates." Patriot Party I, 95 F.3d at 268 (citin g Williams, 393 U.S. at 24). "Thus, the challenged laws violate d the constitutional guarantee of equal protection becaus e they `[gave] the two old, established parties a decided advantage over any new parties struggling for existence and .

. . place[d] substantially unequal burdens on both the right to vote and the right to associate.' " Id. (quoting Wi lliams, 393 U.S. at 24). The panel in Patriot Party I acknowled ged that "[t]he restriction in Williams, which prevented min or parties from appearing on the ballot, was undoubtedly a mor e severe burden on the rights of minor parties than t he restriction imposed by the state election laws in t his case." Id. at 269. Nonetheless, the panel held that "Penns ylvania's decision to ban cross-nomination by minor parties a nd to allow cross-nomination by major parties constitutes the type of `invidious discrimination' prohibited by th e Fourteenth Amendment." Id. We reaffirm this holding for

the reasons set forth below.

___________________________________________________ ______________

9. In Patriot Party I, after reciting the Williams test, the panel wrote

that "our analysis of the Patriot Party's equal protecti on claim is similar in many respects to the balancing test that we applied to its free association claim." Patriot Party I, 95 F.3d at 269 . From this, the Department tries to argue that if the free associat ion claim is vitiated by Timmons, then a fortiori the equal protection claim is also vitiated. This argument ignores, however, the fact that the equal protection analysis is sufficiently different from the free association an alysis so as to stand

on its own.

13The first question to be addressed in an equal prot ection

challenge is what level of scrutiny we should apply in reviewing the challenged laws. In order to make thi s decision, we must assess the impact of the laws on the rights at stake. See, e.g., Illinois State Bd. of E lections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) ( holding that "[r]estrictions on access to the ballot burden two distinct and fundamental rights" and that "a State must establish that its classification is necessary to s erve a compelling interest"); Bullock v. Carter, 405 U.S. 134, 142- 44 (1972) (concluding that a "Texas filing-fee sche me has a real and appreciable impact on the exercise of the

franchise" and that the laws must therefore be " `c losely scrutinized' and found reasonably necessary to the accomplishment of legitimate state objectives in or der to pass constitutional muster"). In Williams, for exam ple, the Court began its analysis by identifying the rights burdened by the challenged state laws -- "the right of indiv iduals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their poli tical persuasion, to cast their votes effectively." Willi ams, 393 U.S. at 30. The Court reasoned that the laws in que stion placed "substantially unequal burdens on both the r ight to vote and the right to associate." Id. at 31. The Co urt stated: "In determining whether the State has power to plac e such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that `only a compelling state int erest in the regulation of a subject within the State's cons titutional power to regulate can justify limiting First Amendm ent freedoms.' " Id. (citing NAACP v. Button, 371 U.S. 415, 438 (1963)).

In the instant case, therefore, we must identify th e burdens imposed by the Pennsylvania laws. In Patrio t Party I, the panel, in its equal protection analysis, ide ntified the following burdens: First, the ban on minor party cr ossnomination "burdens individuals who support a minor party's platform because it forces them to choose a mong three unsatisfactory alternatives: `wasting' a vote on a minor party candidate with little chance of winning , voting for a second-choice major party candidate, and not voting at all." Patriot Party I, 95 F.3d at 269. Second, t he ban

14burdens the political parties themselves because th ey "may

prohibit a minor party from nominating its best can didate and from forming a critical type of consensual poli tical alliance that would help it build support in the co mmunity. Thus, the challenged laws help to entrench the deci ded organizational advantage that the major parties hol d over new parties struggling for existence." Id.

The Court in Timmons addressed similar burdens (in its associational rights analysis) in the context of a general ban on fusion and concluded that the burdens, although not trivial, were not severe. Timmons, 117 S. Ct. at 13 70-72. The Court then proceeded to apply not strict scruti ny, but an intermediate level of scrutiny, in which "the St ate's asserted regulatory interests need only be `suffici ently weighty to justify the limitation' imposed on the[m inor party's] rights." Id. at 1372 (citing Norman, 502 U .S. at 288- 89). Under this standard, the Court indicated that it would not "require elaborate, empirical verifications of the weightiness of the State's asserted justifications. " Id. (citing Munro v. Socialist Workers Party, 479 U.S. 189, 195 -96 (1986)).

If we assume, and we believe we must, that the abov e stated burdens require the same level of scrutiny i n an equal protection analysis that they do in an associ ational rights analysis, then we must now apply an intermed iate level of scrutiny. In doing so, we will recognize, however, that because of the discriminatory aspects of the Pennsylvania statutes, the burdens imposed by them on voters and on political parties are more onerous th an those involved in Timmons. In Timmons, the asserted burde ns existed in the context of an across-the-board ban o n fusion. Timmons, 117 S. Ct. at 1370 (noting that the Minnes ota ban, "which applies to major and minor parties alik e, simply precludes one party's candidate from appeari ng on the ballot, as that party's candidate, if already n ominated by another party"). In the instant case, the burden is exacerbated because Pennsylvania has allowed the ma jor parties to cross-nominate but has disallowed minor parties from doing the same. As the panel in Patriot Party I wrote:

The ill effects of these laws are further ma gnified when the major parties elect to cross-nominate th e same

15candidate, as they did in the school board e lection at

issue. When the major parties cross-nominate a candidate, a minor party candidate must figh t an uphill election battle against the combined strength of two well-organized and established major par ties without even the prospect of forming its own ballots

alliances. If a vote is "wasted" when it is cast for a minor party candidate running against two ma jor party candidates, it is a fortiori wasted when the major parties unite behind one candidate.

Patriot Party I, 95 F.3d at 269.

Using an intermediate level of scrutiny, our next s tep is to weigh, against the burdens imposed, any plausibl e justification the State has advanced for imposing u nequal burdens on major and minor parties. Cf. Romer v. Ev ans, 517 U.S. 620, 632 (1996) ("[E]ven in the ordinary e qual protection case calling for the most deferential of standards, we insist on knowing the relation between the class ification adopted and the object to be attained."). Wefind no such justification. Although the Department has identifi ed justifications, such as preventing ballot manipulat ion and preserving political stability, that were recognize d in Timmons to be legitimate state interests, see Timmo ns, 117 S.Ct. at 1373-74, the Department has not demonstrat ed how these interests are served by the unequal burde n imposed here. Indeed, the Department acknowledges i n its brief that it has no idea why the Pennsylvania legi slature chose to allow major party cross-nomination in thef ive local elections at issue here, but denied the same opportunity to minor parties. Department Br. at 17. 10

___________________________________________________ ______________

10. The Commonwealth of Pennsylvania has also decli ned to assert any interests to justify this discrimination. We note t hat, in both Eshenbaugh's and Childress's case, the District Cou rt served the requisite notice on the Attorney General of Pennsyl vania, advising that the cases challenged the state laws in question, th us giving the Commonwealth an opportunity to intervene to defend them. See 28 U.S.C. S 2403(b). In addition, the Attorney General was invited by this Court to submit an amicus brief to supplement the D epartment's defense of the statutory scheme in this appeal. In each ins tance, including this appeal, the Attorney General chose not to intervene or defend the constitutionality of the challenged laws.

16As the panel in Patriot Party I explained, "Pennsyl vania

imposes these unequal burdens on the right to vote and the right to associate without protecting any significa nt countervailing state interest." Patriot Party I, 95 F.3d at 269. In the context of the equal protection claim, Pennsylvania has not asserted any regulatory intere sts that are "sufficiently weighty" to justify the discrimin atory treatment of major and minor parties.

When we consider constitutional challenges to speci fic provisions of a State's election laws, we cannot sp eculate about possible justifications for those provisions. The court "must identify and evaluate the precise interests p ut forward by the State as justifications for the burd en imposed by its rule." Anderson, 460 U.S. at 789; cf

. Edenfield v. Fane, 507 U.S. 761, 768 (1993) (observ ing that, unlike rational basis review, the intermediate stan dard of review applicable in commercial speech cases "does not permit [the Court] to supplant the precise interest s put forward by the State with other suppositions"). Furthermore, our analysis is confined to the four s tate interests asserted by the Department to the Distric t Court.11

___________________________________________________ ______________

11. At oral argument, the Department asserted, for the first time, that allowing major party cross-nomination for the five local offices served a state interest in making those offices nonpartisan or less partisan. The Department's failure to raise this argument in its appeal briefs, as well as before the District Court, would alone be fatal for the argument. "An issue is waived unless a party raises it in its ope ning brief, and for

those purposes `a passing reference to an issue . . . wil l not suffice to bring

that issue before this court.' " Laborers' Int'l Un ion v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (quoting Sim mons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (p lurality opinion) (Becker, J.)). Even if we were to consider this sta te interest, however,

it does not persuade us, because the Department fails to explain why the interest requires or allows for discrimination agai nst minor parties.

In addition, the Department, following the dissent in Patriot Party I, now tries to assert a state interest in ensuring th at partisan voters who wish to vote for a "pure" Democrat or Republican kn ow at the time of the major party primary whether the major party candida te will accept a minor party cross-nomination. The Department, howev er, in arguing this case before the Patriot Party I panel, "never asser ted that the Commonwealth had any such interest in protecting pa rtisan voters, even

17"It is well established that failure to raise an is sue in the

district court constitutes a waiver of the argument ." Brenner v. Local 514, United Bhd. of Carpenters, 92 7 F.2d 1283, 1298 (3d Cir. 1991).

As summarized in Patriot Party I, the Department

advanced four state interests to the District Court : "(1) preventing `sore loser' candidacies; (2) preventing individual candidates from `monopolizing' the ballot and causi ng voter confusion; (3) preventing a candidate from `bleed[i ng] off votes of independent voters to bolster his or her m ajor party endorsement'; and (4) encouraging new candidates to run as independents." Patriot Party I, 95 F.3d at 264. With respect to all four purported state interests, no e ffort is made by the state to show why those interests justi fy permitting the major parties to cross-nominate, whi le forbidding the minor parties from doing so. While s uch interests may be sufficiently weighty in light of T immons to justify a general ban on fusion, they are not suffi ciently weighty to justify a ban that discriminates between major and minor parties.

First, the sore loser justification is insufficient to satisfy the applicable level of intermediate scrutiny. As t he panel explained in Patriot Party I, sore losers"are candi dates who lose a major party primary but insist on running on a minor party ticket in the general election." Id. at 265. Another panel of this court recently recognized tha t sore loser and disaffiliation laws have been upheld. Cou ncil of Alternative Political Parties v. Hooks, 121 F.3d 87 6, 881 (3d Cir. 1997) (citing Storer v. Brown, 415 U.S. 724 (1 974)).12

___________________________________________________ ______________

after it was suggested as a possibility at oral arg ument." Patriot Party

I, 95 F.3d at 264 n.6. The panel concluded that, "[b]e cause the Department has shown no interest in pursuing this l ine of argument, we will not dwell on it in this opinion." Id. Even if we were to consider the Department's latest reversal of position, we would not find this state interest persuasive. Once again, the Department doe s not explain why a voter's alleged interest in knowing which "pure" ca ndidates will refuse a cross-nomination justifies discrimination against m inor parties.

12. The Court in Timmons relied on Storer, in which the Court "upheld a California statute that denied ballot positions t o independent

18The panel in Hooks, however, rejected New Jersey's attempt

to justify early filing deadlines on the grounds th at they prevented sore loser candidacies, stating that "the y are both too broad . . . and too narrow." Id. (citing A nderson, 460 U.S. at 805 & n.31). Similarly, the Pennsylvani a laws at issue here cannot be justified as preventing sor e loser candidacies because they are too broad and too narr ow. As the panel noted in Patriot Party I, the Pennsylvani a laws only "prevent sore loser candidacies insofar as the y prevent a candidate who failed to win either major party pr imary from running as a minor party candidate in the gene ral election." Patriot Party I, 95 F.3d at 165. The law s are too broad, however, because they bar a third party from nominating a candidate such as Ms. Childress even t hough she did not lose either primary race and was thus n ot a sore loser. They are too narrow because they do not prevent candidates like Mr. Eshenbaugh from continuing on a s the Democratic candidate even though he had lost the Republican primary.

Next, the Department asserts a state interest in preventing voter confusion and ballot clogging caus ed by

___________________________________________________ ______________

candidates who had voted in the immediately precedi ng primary elections or had a registered party affiliation at any time during the

year before the same primary elections." Timmons, 117 S. Ct. at 1374 (citing Storer, 415 U.S. at 728). The disaffiliation provis ion in Storer, however, differs from the Pennsylvania laws in at least one crucial respect. The Court in Timmons noted that in Storer , the challen ged law "did not discriminate against independent candidates." Timmo ns, 117 S. Ct. at 1374 (citing Storer, 415 U.S. at 734). Indeed, in d escribing the

California statute, the Court in Storer observed that, apart f rom the fact that an independent candidate needed to "qualify for the ba llot by demonstrating substantial public support" in some other way than standing for a primary election, "the qualifications required of t he independent candidate are very similar to, or identical with, t hose imposed on party candidates." Storer, 415 U.S. at 733.

Similarly, the Court in Timmons quoted from its dec ision in Burdick v. Takushi, in saying that " `we have repeatedly uphel d reasonable, politically neutral regulations that have the effec t of channeling expressive activit[ies] at the polls.' " Timmons, 1 17 S. Ct. at 1375 (quoting Burdick, 504 U.S. at 437-38). Because the Pennsylvania laws discriminate against minor parties, they are not po litically neutral.

19the monopolization of the ballot by minor candidate s and

the proliferation of parties. The Department, howev er, does not explain why minor parties can be prevented from monopolizing the ballot and causing voter confusion when the major parties are allowed to do so through majo r party cross-nomination. In upholding Minnesota's general fusion ban, the Court in Timmons specifically disclaimed r eliance on the state's alleged interest in avoiding voter c onfusion. Timmons, 117 S. Ct. at 1375 n.13. This asserted int erest carries even less weight here. Indeed, the fact tha t the Pennsylvania laws discriminate between major and mi nor parties undermines this asserted interest, because major party cross-nomination (which is allowed) would see m to pose just as large a risk of voter confusion. Moreo ver, as the panel observed in Patriot Party I, "the Departm ent has presented no evidence to indicate that fusion is li kely to produce a crippling proliferation of minor parties.

. . . Furthermore, Pennsylvania retains the authority to set reasonable threshold requirements for parties seeki ng admission to the ballot." Patriot Party I, 95 F.3d at 266.

The Department also asserts that allowing crossnomination by minor candidates will allow a candida te to bleed off votes of independent voters to bolster hi s or her major party endorsement. This state interest was no t raised in the Timmons case, and we reject it here. As the panel pointed out in Patriot Party I, "[c]ross nomination will not increase a major party's share of minor party votes unless the minor party voluntarily nominates the major par ty candidate as its own." Id. at 267. Indeed, allowing the major parties to cross-nominate may actually serve to bleed off minor party votes, as an individual who support s a minor party's platform but does not want to waste a vote on a minor candidate may cast a ballot instead on a ca ndidate who has been nominated by both major parties. Once again, the fact that major parties are allowed to c rossnominate undermines this proffered state interest.

Finally, the argument that the laws serve an intere st in encouraging new candidates to run as independents i s also undermined by the fact that major parties may cross nominate. "If the Commonwealth bans cross-nominatio n by minor parties to encourage new candidates for offic e, it

20should logically prohibit cross-nomination by major parties

for the same reason. An across-the-board ban on cro ssnomination would require the major parties to nomin ate their own candidates, thus increasing the number of

candidates in the field and the level of electoral competition." Id. If anything, the current statutor y scheme may discourage independent candidates. A three-way race against two major party candidates would be formida ble enough for an independent candidate. An independent candidate would face an even greater challenge runn ing against a candidate nominated by both major parties

.

In sum, we find unpersuasive each of the interests that the Department has offered in support of Pennsylvan ia's discriminatory statutory scheme. The fact that Pennsylvania allows major parties to engage in cros snomination in certain local elections, but forbids minor parties from so doing, constitutes "invidious discr imination" in violation of minor parties' right to equal prote ction of the laws. The facially discriminatory nature of the law s imposes a heavier burden on minor parties than a general fu sion ban of the type considered in Timmons. Moreover, un like the Timmons case, the Department in this case has o ffered no "important" or "sufficiently weighty" state inte rests that justify, even under intermediate scrutiny, the discriminatory burdens imposed on minor parties.

V. Conclusion

We reaffirm the holding of the Patriot Party I pane l that 25 Pa. Stat. Ann. SS 2936(e) and 2911(e)(5) violate the Patriot Party's right to equal protection of the la ws by banning cross-nomination of candidates by minor par ties in certain local elections. Therefore, we will affirm the orders of the District Court denying Rule 60(b) relief in Eshenbaugh's case (No. 97-3359) and granting summar y judgment for the Patriot Party in Childress's case (No. 96- 3677). The injunction of the District Court, as it appears in Paragraph 4 of the District Court's Order of Decemb er 9, 1996, is affirmed as written. However, because we a ffirm only on equal protection grounds, we will remand th e Childress case with instructions that the District Court delete from Paragraph 3 of that Order the phrase"to free

21association under the First and Fourteenth Amendmen ts of

the Constitution, and".13

___________________________________________________ ______________

13. Paragraphs 3 and 4 of the District Court Order of December 9, 1996

state:

3. Article IX, Sections 951(e)(5) and 976(e) of the Act of June 3, 1937, P.L. 1933, Pennsylvania Election Code, (the code) 2 5 P.S. SS2911(e)(5) and 2936(e) (Sections 2911(e)(5) and 2936(e)) are d eclared to be an unconstitutional burden on the right of plaintiff, the Patriot Party of Allegheny County, to free association under the Fir st and Fourteenth Amendments of the Constitution, and to equal protec tion of the law

under the Fourteenth Amendment to the Constitution insofar as they prohibit plaintiff, a minor political party, from n ominating any person as a Patriot Party candidate for any office referred t o in Section 2870(f) of the Code, 25 P.S. S2870(f), because such person is also a major party

candidate for that office.

4. Defendants are hereby enjoined from enforcing th e provisions of Sections 2911(e)(5) and 2963(e) of the Code to prev ent a minor political party from nominating a candidate for any office re ferred to in Section 2870(f) of the Code because that candidate files a petition for a major party nomination to that office or is nominated as a candidate for that office in the primary election of a major party.

22McKEE, Circuit Judge, concurring:

I concur fully with the majority's holding that the Supreme Court's decision in Timmons v. Twin Cities Area New Party does not affect this Court's review of Pennsylvania's discriminatory anti-fusion laws unde r the Equal Protection Clause. I further concur in the ma jority's

conclusion that the anti-fusion laws at issue here violate the Equal Protection Clause. I believe, however, th at, under the Equal Protection Clause, when a law both discri minates and burdens a fundamental right, strict scrutiny, r ather than intermediate scrutiny, applies. See Clark v. J eter, 486 U.S. 456, 461 (1988) ("Classifications based on rac e or national origin and classifications affecting funda mental rights are given the most exacting scrutiny.") (int ernal quotations omitted); Nordlinger v. Hahn, 505 U.S. 1 , 10 (1992) (discriminatory statutes that interfere with a fundamental right are subject to strict judicial sc rutiny); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58 (1988) (same).

The classification here must be narrowly tailored t o serve a compelling State interest to survive an Equal Pro tection challenge. Indeed, the Supreme Court repeatedly has applied precisely this standard to review ballot re strictions which disparately infringe upon First Amendment associational rights. See, e.g., William v. Rhodes, 393 U.S. 23, 31 (1968) (In reviewing a ballot restriction ap plicable only to minor parties, the Court stated: "In determ ining whether the State has power to place such unequal burdens on a minority group where [associational ri ghts] are at stake, the decisions of this Court have cons istently held that `only a compelling state interest in the regulation of a subject within the State's constitutional powe r to regulate can justify limiting First Amendment freed oms.' ") (quoting NAACP v. Button, 371 U.S. 415 (1963)); Ame rican Party of Texas v. White, 415 U.S. 767, 780 (1974) ( "We agree with the District Court that whether the qual ifications for ballot position are viewed as substantial burde ns on the right to associate or as discriminations against pa rties not polling 2% of the last election vote, their validit y depends upon whether they are necessary to further compelli ng state interests," which cannot be served "equally w ell in

23significantly less burdensome ways."); Storer v. Br own, 415

U.S. 724, 729 (1974) (applying Williams v. Rhodes s trict scrutiny to review ballot restrictions on independe nt candidates); Illinois State Bd. of Elec. v. Sociali st Workers, 440 U.S. 173, 184-86 (1979) (applying strict scruti ny standard to review disparate nominating requirement s); see also, e.g., Harper v. Virginia State Bd. of Elec., 383 U.S. 663, 670 (1966) ("close scrutiny" applied to poll t ax, which discriminates on the basis of wealth, because funda mental right infringed); Bullock v. Carter, 405 U.S. 134, 142-44 (1972) (applying Harper standard to filing fee syst em).

As the Supreme Court recognized in Timmons, anti-fu sion laws, like the ones at issue here, burden First and Fourteenth Amendment associational rights. Timmons, 520 U.S. 351, 357-58 (1997); see also Munro v. Socialis t Workers Party, 479 U.S. 189, 193 (1986) (recognizin g that balloting and eligibility requirements for minority party candidates impinge fundamental associational rights ); Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983) (same); Williams, 393 U.S. at 30-31 (same). In dete rmining whether the burdens actually violated the First Amendment, the Court stated:

Regulations imposing severe burdens on plain tiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, h owever, trigger less exacting review, and a State's `important regulatory interests' will usually be enough to justify `reasonable, nondiscriminatory restrictions. '

Timmons, 520 U.S. at 358 (emphasis added). Thus, th e Court's decision in Timmons to apply a less exactin g standard of review was premised on the fact that th e Minnesota anti-fusion laws were nondiscriminatory. That is not our case: Pennsylvania's anti-fusion laws discr iminate between major parties and minor parties. Therefore, even assuming that the standard used in Timmons applies in the First Amendment context, I doubt its application in the Equal Protection context.

Thus, because the Pennsylvania anti-fusion laws are both discriminatory and burden a fundamental right, I be lieve that under established Equal Protection doctrine we must

24strictly scrutinize Pennsylvania's discriminatory t reatment

of minority party candidates under the anti-fusion laws. Because I agree with the majority's conclusion that the ballot restrictions do not pass constitutional must er even under the less exacting scrutiny applied by the maj ority, it necessarily follows that they do not pass muster un der the heightened scrutiny standard that I advocate. Accor dingly, I concur in the majority's result.

25GREENBERG, Circuit Judge, concurring and dissenting :

I concur and join in the court's opinion denying th e Department's motion under Fed. R. Civ. P. 60(b)(6). I add the following comments, however, with regard to tha t motion. By the time of our decision in Patriot Part y I on September 9, 1996, the Supreme Court had granted certiorari in Twin Cities Area New Party v. McKenna ,, 73 F.3d 196 (8th Cir. 1996). See McKenna v. Twin Citie s Area New Party, 517 U.S. 1219, 116 S.Ct. 1846 (1996). Th us, the Department had every reason to believe that the Supreme Court would review at least a portion of th e theory underlying our opinion in Patriot Party I. Moreover , I dissented in Patriot Party I. See Patriot Party v. Allegheny County Dep't of Elections, 95 F.3d 253, 270 (3d Cir . 1996). Nevertheless, in the face of these encouraging sign s, the Department chose not to seek certiorari in Patriot Party I. Therefore, it would be difficult to justify grantin g the Rule 60(b)(6) motion. Moreover, even though this case ha s ramifications going beyond the interests of the par ties, in view of the court's decision in No. 96-3677, Childr ess's case, with respect to the equal protection claim, t he Department cannot obtain effective relief on the me rits in

No. 97-3359.

While I join in the result in No. 96-3677, with res pect to Childress, the opinion plainly goes too far and thu s I must dissent from it. In dissenting in Patriot Party I, I made the following point:

I recognize that it reasonably could be argu ed that Pennsylvania could avoid the problem I ident ify by requiring minor parties to select their cand idates prior to the primary election. Of course, such a c ondition would restrict the minor party's flexibility and would have problems of its own. In any event, the possibility that a minor party could designate its candi date before the major party primary election does not af fect my analysis. Rather, I take this case as it has been presented by the parties to this appeal and on the basis on which the majority decides it, whic h is whether the Pennsylvania statutes are uncons titutional `as applied in this case.' Thus, I do not ad dress the possibility that the Pennsylvania statutes m ight be

26unconstitutional if applied in a situation i n which the

minor party files its nominating papers befo re the primary for, even if they would be unconstit utional in that circumstance, they validly can be appli ed here. See Commonwealth v. The First School, 471 Pa . 471, 370 A.2d 702, 705-07 (1977). Here the Patrio t Party nominated Eshenbaugh after the primary, and he accepted its nomination at that time, and bo th the district court and the majority adjudicated the case on

that basis and so do I.

Patriot Party I, 95 F.3d at 271.

The circumstances I contemplated in Patriot Party I that might arise in fact came to pass in Childress's cas e because, as the majority points out, Childress "per fected her nomination as one of the Patriot Party's candid ates by filing nomination papers with the Department" on Ma y 16, 1995, "before the municipal primary elections." Maj ority Op. at 5. Accordingly, the question for the court t o resolve

in No. 96-3677 should not be whether 25 Pa. Stat. A nn. SS 2936(e) and 2911(e)(5) are unconstitutional as v iolating a minor party's right to equal protection of the laws . Rather, the question should be whether the statutes are unconstitutional as violating a minor party's right to equal protection of the law when its candidate declares h er intent to cross-file before a primary election. Indeed, th e Patriot Party itself well understands this point because in its brief in No. 96-3677 it explains that "[t]he present case (Patriot II) was also filed as an `as applied' challenge aft er the County refused to permit the Party [to] nominate an other candidate (Barbara Childress) in the 1995 municipal election cycle." Br. at 5 (emphasis added).

I will accept the result that the statutes in issue are unconstitutional when applied to a minor party cand idate, such as Childress, cross-filing before the primarie s, because a candidate by cross-filing before the prim ary election may seek both major parties' nominations. But sections 2936(e) and 2911(e)(5) surely are not unconstitutional if applied in circumstances parall eling those in Eshenbaugh's case in Patriot Party I, beca use there the candidate was seeking to cross-file at a time w hen the major parties had selected their candidates at the primaries

27and thus could no longer nominate cross-filing cand idates.

It therefore follows that applying sections 2936(e) and 2911(e)(5) only when a candidate seeks to cross-fil e after a primary treats a minor party exactly the same as th e major parties. Consequently, there simply cannot be an eq ual protection problem in those circumstances, as the s tatutes do not place unequal burdens on minor and major par ties. Thus, the Department need not demonstrate any inter est to justify discriminatory treatment of major and minor parties, as there is no discriminatory treatment to justify. Accordingly, in declaring sections 2936(e) and 2911 (e)(5) unconstitutional without regard for when the candid ate cross-files, the majority goes too far.

I close by making one more point. A court sometimes

must declare a state statute unconstitutional. Neve rtheless should we not, as a federal court, be restrained in taking such action? The Supreme Court of Pennsylvania in Commonwealth v. The First School, 370 A.2d 702, 705 -07 (Pa. 1977), made it clear that if a statute can be applied constitutionally in some situations then a court sh ould so apply it. After all, 1 Pa. Cons. Stat. Ann. S 1925 (1995) (emphasis added) provides:

The provisions of every statute shall be se verable. If any provision of any statute or the applicat ion thereof to any person or circumstance is held invalid, the remainder of the statute, and the applicatio n of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds tha t the valid provisions of the statute are so essentially and inseparably connected with, and so depend up on, the void provision or application, that it canno t be presumed the General Assembly would have ena cted the remaining valid provisions without the v oid one; or unless the court finds that the remaining va lid provisions, standing alone, are incomplete a nd are incapable of being executed in accordance wi th the legislative intent.

We should follow First School and apply section 192 5 here because it is clear that the statutes easily can be applied constitutionally to a minor party's cross-filing af ter the primary. Moreover, can anyone really believe that t he

28Legislature would not want sections 2936(e) and 291 1(e)(5)

applied to minor party candidates filing after the primary merely because they cannot be applied to those fili ng earlier? Surely, the Legislature would want the sta tutes applied so far as is possible.

The majority indicates that "[b]ecause the Pennsylv ania law permits fusion by major parties, but prohibits fusion by minor parties, it is, on its face, discriminatory." Maj. Op. at 12. A proper respect for judicial restraint should lead us to the result that the discrimination be eliminated by allowing the minor parties to fuse their candidates with the major parties' candidates when the major parties' candida tes can fuse with each other. Instead, the majority creates a new type of discrimination, as it allows a minor party to fuse its candidates with those of a major party when the maj or parties' candidates cannot fuse. Thus, I dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29