1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-1999

Patriot Party Alghny v. Alghny Cty Dept

Precedential or Non-Precedential:

Docket 96-3677,97-3359

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"Patriot Party Alghny v. Alghny Cty Dept" (1999). 1999 Decisions. Paper 85.

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Filed 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 United States District 

Judge for the District of New Jersey, sitting by designation. 
 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 extent 

our earlier decision in Patriot Party of Allegheny County v. 

Allegheny County Dep't of Elections, 95 F.3d 253 (3d Cir. 

1996) (Patriot Party I), remains good law in the wake 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 candidates 

by minor parties, but not by major parties, violated the 

 2 
Patriot Party's2 right to freedom of association under the 

First and Fourteenth Amendments, as well as its right to 

equal protection of the laws under the Fourteenth 

Amendment. We now conclude that the decision in 

Timmons, in upholding a Minnesota "anti-fusion" statute 

against a First Amendment attack, does not undercut our 

equal protection analysis in Patriot Party I. We will, 

therefore, reaffirm our holding that the Pennsylvania 

statutes here, as applied to the local elections in question, 

violate the Patriot Party's right to equal protection of the 

laws. 

I. Background 

This en banc review implicates two separate but related 

cases. In both cases, the Patriot Party challenged the 

constitutionality of Pennsylvania's ban on minor party 

"cross-nominations" in certain local offices, 25 Pa. Stat. 

Ann. SS 2936(e) and 2911(e)(5), as a violation of the Patriot 

Party's right to freedom of association and its right to the 

equal protection of the laws. In essence, the challenged 

statutes prevent minor political parties from crossnominating a candidate for certain local offices when that 

candidate has already been nominated for the same office 

by another political party. The major parties, however, are 

allowed to engage in cross nomination or "fusion" for those 

local offices.3 As a consequence, while Pennsylvania 

prohibits all parties from cross-nominating the same person 

for most state offices, it makes an exception in primary 

elections for five local offices,4 in which major parties are 

_________________________________________________________________ 

2. By Order dated January 14, 1999, this court granted plaintiff 's 

motion to amend the caption to change the name of Patriot Party of 

Allegheny County to Reform Party of Allegheny County. In this opinion, 

we will continue to use the former appellation. 

3. "Fusion" is "the nomination by more than one political party of the 

same candidate for the same office in the same general 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 Philadelphia, . . . school 

director 

in a district where that office is elective, or . . . justice of the 

peace." 25 

Pa. Stat. Ann. S 2870(f). 

 3 
permitted 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 attempt to 

nominate Michael Eshenbaugh as a candidate for school 

director in Pennsylvania's North Allegheny School District 

in the November 1993 general election. This nomination 

was barred by the application of the fusion ban, because 

Eshenbaugh had already sought the nomination of both 

major parties in the May 1993 municipal primary, in which 

he had secured the nomination of the Democratic Party, 

but not of the Republican Party. 

_________________________________________________________________ 

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

statutes: 

 As a minor political party, the Patriot Party does not file 

 "nomination petitions" for the primary elections, as do the major 

 political parties. Instead, the Patriot Party, like other minor 

political 

 parties, must file "nomination papers" containing the number of 

 signatures specified by Pennsylvania law. 25 Pa. Stat. Ann. S 2872. 

 Section 2936(e) of the Pennsylvania Code prohibits the filing of a 

 nomination paper "if the candidate named therein has filed a 

 nomination petition for any public office for the ensuing primary, 

or 

 has been nominated for any such office by nomination 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 by 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 apply only to the 

 "nomination papers" filed by minor parties and not to "nomination 

 petitions" filed by the major parties participating in the 

primaries. 

 Thus, while S 2870(f) of the Pennsylvania election code expressly 

 allows the major parties to cross-nominate candidates 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. 
 4 
In 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 Elections and 

its director (collectively, "the Department"), alleging that the 

two relevant sections of the Pennsylvania Election Code 

violate the Patriot Party's right of free association under the 

First and Fourteenth Amendments, as well as its right to 

equal protection of the laws under the Fourteenth 

Amendment. The District Court granted summary judgment 

for the Department. On appeal, a divided panel of this 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 remand, 

the District Court entered an order granting declaratory 

and injunctive relief in favor of the Patriot Party. 

Four months later, on April 28, 1997, the Supreme Court 

issued its decision in Timmons. As a result, on April 30, the 

Department filed a motion for relief from judgment in this 

case pursuant to Fed. R. Civ. P. 60(b). The District Court 

denied the requested relief. The Department appealed that 

order, and another panel of this court affirmed it in an 

opinion filed June 15, 1998 ("Patriot Party II"), which we will 

discuss further in connection with the second case.

The undisputed facts of the second case (No. 96-3677) 

also involve a nomination to the office of school director in 

the North Allegheny School District. On May 13, 1995, the 

Patriot Party selected several candidates for this office, 

including Barbara Childress. On May 16, 1995, before the 

municipal primary elections, Childress perfected her 

nomination as one of the Patriot Party's candidates by filing 

nomination papers with the Department. 

Childress also sought the nominations of the Republican 

and Democratic parties, and in the municipal primary 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 prohibited 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 relief, 

 5 
alleging once again that the two pertinent sections of the 

Pennsylvania Election Code violate the Patriot Party's right 

of free association and its right to equal protection of the 

laws. The Department filed a motion to dismiss pursuant to 

Fed. R. Civ. P. 12(b)(6), while the Patriot Partyfiled a 

motion for summary judgment under Fed. R. Civ. P. 56. 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 motion for 

summary judgment, denied the Department's motion to

dismiss, and entered an order granting the requested 

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 rights of 

the Patriot Party. The panel concluded that it was bound by 

Patriot Party I insofar as the equal protection holding had 

not been overruled by Timmons. 

On June 30, 1998, the Department filed a petition for 

rehearing en banc, asking us to decide whether Patriot 

Party I (and by extension, Patriot Party II ) has been 

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 been 

overruled to the extent that it held that the Patriot Party's 

right to equal protection of the laws was violated by the ban 

on minor party fusion in the local elections in question. 

II. Patriot Party I and Timmons 

To begin our discussion, it is helpful first to review the 

holdings in Patriot Party I and in Timmons. In Patriot Party 

I, a panel of this court held that 25 Pa. Stat. Ann. 

SS 2936(e) and 2911(e)(5), which prohibit minor parties, but 

not major parties, from cross-nominating candidates in 

certain local elections, violate minor parties' rights 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 Court 

precedent, including Eu v. San Francisco County Democratic 

Cent. Comm., 489 U.S. 214, 222 (1989), and Anderson v. 

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

the standard: 

 To determine whether a state election law violates the 

 U.S. Constitution, we first examine whether the 

 challenged law burdens rights protected by the First 

 and Fourteenth Amendments. If the law does burden 

 protected rights, we must gauge the character 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 not only the 

 legitimacy and strength of the state's proffered 

 interests, but the necessity of burdening the plaintiff's 

 rights in order to protect those interests. If the burden 

 on the plaintiff's rights is severe, the state's interest 

 must be compelling and the law must be narrowly 

 tailored to serve the state's interests. 

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

The panel, applying the standard, concluded that the 

Pennsylvania statutes infringed upon the Patriot Party's 

right of free association in two ways: "First, the restriction 

prevents the Party from nominating the standard bearer 

who the Party thinks will `most effectively advance [its] 

program and platform.' Second, the challenged election 

laws deprive the Patriot Party of an opportunity to`fuse' its 

votes with those of a major party and thereby to make 

inroads into the political process." Id. Because the panel 

found these burdens to be severe, it held that Pennsylvania 

"must demonstrate that these laws are narrowly tailored 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 interests 

were served: "(1) preventing `sore loser' candidacies; (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 found that 

they did not bear scrutiny. Id. at 264-68. 

 7 
The panel also held that the challenged statutes violate 

minor parties' right to equal protection of the laws. The 

panel observed that the statutes facially discriminated 

between major and minor parties, and that in this respect 

the case was distinguishable from the Minnesota statutes 

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 Supreme 

Court's decision in Williams v. Rhodes, 393 U.S. 23 (1968), 

the panel examined whether the election laws created 

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 the totality 

of the burden that the laws place on the voting and

associational rights of political parties and individual voters 

against the justifications that the State offers to support 

the law." Id. (citing Williams, 393 U.S. at 34). Applying this 

analysis, the panel concluded that "Pennsylvania's decision 

to ban cross-nomination by minor parties and to allow 

cross-nomination by major parties constitutes the type of 

`invidious discrimination' prohibited by the Fourteenth 

Amendment." Id. The panel noted that, by treating minor 

and major parties differently, the statutes burdened both 

minor parties and the voters that support them. Id. The 

panel reiterated its earlier conclusion that, in the face of 

these unequal burdens, the Department had offered no 

compelling justifications. Id. ("Pennsylvania imposes these 

unequal burdens on the right to vote and the right to 

associate without protecting any significant countervailing 

state interest."). 

In Timmons, the Supreme Court upheld Minnesota laws

that imposed a general ban on fusion candidacies. The 

Court applied the same test that the panel had applied in 

Patriot Party I but concluded that the Minnesota laws did 

not violate the right to freedom of association. Assessing 

the burdens placed on minor political parties' associational 

rights, the Court rejected the argument that a severe 

burden was imposed by the fact that a party might be 

prevented from nominating a particular individual as 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 burden that 

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

argument that the fusion ban imposed a severe burden on 

minor parties' attempts to organize or develop political 

alliances. Id. at 1371 ("Minnesota has not directly

precluded minor political parties from developing and 

organizing. . . . Nor has Minnesota excluded a particular 

group of citizens, or a political party, from participation in 

the election process."). In sum, the Court concluded the 

burdens on associational rights imposed by the fusion 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' will usually 

be enough to justify `reasonable, nondiscriminatory

restrictions.' " Id. at 1370 (quoting Burdick v. Takushi, 504 

U.S. 428, 434 (1992) (internal quote marks omitted)). The 

Court reasoned that "the State's asserted regulatory 

interests need only be `sufficiently weighty to justify 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 confusion," 

id. at 1375 n.13, the Court concluded that the burdens 

imposed by the Minnesota's fusion ban on minor parties' 

associational rights were "justified by `correspondingly 

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 filed in 

Eshenbaugh's case.6 The panel in Patriot Party II affirmed 

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. Horizon 

_________________________________________________________________ 

6. The Department moved for relief from judgment under Rule 60(b)(4) 

and (6), but on appeal, they have abandoned the former, opting only for 

relief under Rule 60(b)(6). 

 9 
Leasing, 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 cases 

evidencing extraordinary circumstances." Martinez-McBean 

v. Government of Virgin Islands, 562 F.2d 908, 911 (3d Cir. 

1977) (quoting Stradley v. Cortez, 518 F.2d 488, 493 (3d 

Cir. 1975)). Furthermore, "[i]ntervening developments in the 

law by themselves rarely constitute the extraordinary 

circumstances required for relief under Rule 60(b)(6)." 

Agostini v. Felton, 117 S. Ct. 1997, 2018 (1997). As we will 

discuss below, the Supreme Court's decision in Timmons 

did not overrule the holding of the Patriot Party I panel that 

the Pennsylvania statutes at issue violate the Equal 

Protection Clause. Therefore, as the panel in Patriot Party II 

recognized, no extraordinary circumstances exist that 

would justify granting the Department's motion under Rule 

60(b)(6). 

Furthermore, to the extent that the Department is 

attempting to use its Rule 60(b)(6) motion as a means 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 Department 

chose not to petition for certiorari in the Eshenbaugh case 

even though it was on notice that the Timmons case was 

then pending before the Supreme Court. Indeed, a petition 

for certiorari might have obviated the need for this en banc 

review. The Department cannot attempt to second-guess 

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 Rule 60(b) 

motion. The District Court properly concluded that the 

outcome in Eshenbaugh's case (No. 97-3359) could not be 

reopened for further consideration. 

IV. The Equal Protection Claim 

We turn now to the Patriot Party's motion for summary 

judgment in Childress's case (No. 96-3677), the granting of 

 10 
which 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. St. 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 Timmons.7 Nothing 

in the Timmons opinion itself weakens the equal protection 

analysis of Patriot Party I, because no equal protection 

claim was asserted or considered by the Court in Timmons. 

The statutory scheme in Timmons differs from the 

Pennsylvania scheme in a manner crucial for the equal 

protection analysis. Timmons involved an across-the-board 

ban on fusion by both major and minor parties. In contrast, 

the Pennsylvania statutes involve a ban on crossnomination that facially discriminates against minor parties 

by allowing major parties, but not minor parties, to crossnominate in certain circumstances. The Supreme Court in 

Timmons did not hold that states can treat minor parties in 

a discriminatory way. Indeed, in discussing the test for 

deciding whether state election laws violate First and 

_________________________________________________________________ 

7. We have chosen not to address whether the Supreme Court's opinion 

in Timmons eviscerates the associational rights analysis 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 violate a minor party's 

right to equal protection of the laws. Some degree of the associational 

rights analysis in Patriot Party I may remain viable because the 

Pennsylvania laws, in contrast to the Minnesota laws in Timmons, 

facially discriminate between major and minor parties, thus exacerbating 

the burdens imposed on minor parties. Because, however, our equal 

protection analysis is directed at the impact of this same discriminatory 

language, we do not go on to examine it as it applies to the right to 

freedom of association. 

Nevertheless, to the extent that it can be suggested that the 

associational rights analysis in Patriot Party I may have state-wide or 

circuit-wide implications for election processes, see Patriot Party I, 95 

F.3d at 272 (Greenberg, J., dissenting) (arguing that the majority's 

approach in Patriot Party I "leads to the conclusion 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 unconstitutionally infringe on 

associational rights, appears indeed to foreclose such a suggestion. 

 11 
Fourteenth Amendment associational rights, the Court 

wrote: 

 Regulations imposing severe burdens on plaintiffs' 

 rights must be narrowly tailored and advance a 

 compelling state interest. Lesser burdens, however, 

 trigger less exacting review, and a State's " `important 

 regulatory interests' " will usually be enough to justify 

 " `reasonable, nondiscriminatory restrictions.' " 

Timmons, 117 S. Ct. at 1370 (emphasis added). Thus, even 

though the Court held that the burdens posed by fusion 

bans on parties and voters are not severe, the Court still 

maintained a requirement that the restrictions be 

reasonable and nondiscriminatory. Because the 

Pennsylvania law permits fusion by major parties, but 

prohibits fusion by minor parties, it is, on its face, 

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 equal 

protection analysis. Rather, the Court cited Williams 

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 completely 

insulate the two-party system from minor parties' or 

independent candidates' competition and influence"). 

In Williams, the Supreme Court stated at the outset: 

 It is true that this Court has firmly established the 

 principle that the Equal Protection Clause does not 

 make every minor difference in the application of laws 

 to different groups a violation of our Constitution. But 

_________________________________________________________________ 

8. An argument could be made that the Court in Timmons did in fact give 

states permission to treat minor parties differently. For example, the 

Court wrote that "the States' interest permits them to enact reasonable 

regulations that may, in practice, favor the traditional two party 

system." 

Timmons, 117 S. Ct. at 1374. This argument is disposed of, however, by 

the recognition that there is a difference between regulations that "in 

practice" favor a two party system and those that on their face 

discriminate between major and minor parties. The Pennsylvania 

statutes discriminate on their face between major and minor parties. 

 12 
 we have also held many times that `invidious' 

 distinctions cannot be enacted without a violation of 

 the Equal Protection Clause. 

Williams, 393 U.S. at 30. The Court went on to define the 

applicable test: "In determining whether or not a state law 

violates the Equal Protection Clause, we must consider the 

facts and circumstances behind the law, the interests 

which the State claims to be protecting, and the interests of 

those who are disadvantaged by the classification." Id.9 

As the panel in Patriot Party I explained,"[i]n Williams, 

Ohio election laws made it virtually impossible for new or 

small political parties to be placed on the state ballot for 

the selection of presidential and vice presidential

candidates." Patriot Party I, 95 F.3d at 268 (citing Williams, 

393 U.S. at 24). "Thus, the challenged laws violated the 

constitutional guarantee of equal protection because 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 Williams, 393 

U.S. at 24). The panel in Patriot Party I acknowledged that 

"[t]he restriction in Williams, which prevented minor parties 

from appearing on the ballot, was undoubtedly a more 

severe burden on the rights of minor parties than the 

restriction imposed by the state election laws in this case." 

Id. at 269. Nonetheless, the panel held that "Pennsylvania's 

decision to ban cross-nomination by minor parties and to 

allow cross-nomination by major parties constitutes the 

type of `invidious discrimination' prohibited by the 

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 protection 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 association 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 analysis so as to stand 

on 

its own. 

 13 
The first question to be addressed in an equal protection 

challenge is what level of scrutiny we should apply in 

reviewing the challenged laws. In order to make this 

decision, we must assess the impact of the laws on the 

rights at stake. See, e.g., Illinois State Bd. of Elections 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 serve a 

compelling interest"); Bullock v. Carter, 405 U.S. 134, 142- 

44 (1972) (concluding that a "Texas filing-fee scheme has a 

real and appreciable impact on the exercise of the 

franchise" and that the laws must therefore be " `closely 

scrutinized' and found reasonably necessary to the 

accomplishment of legitimate state objectives in order to 

pass constitutional muster"). In Williams, for example, the 

Court began its analysis by identifying the rights burdened 

by the challenged state laws -- "the right of individuals to 

associate for the advancement of political beliefs, and the 

right of qualified voters, regardless of their political 

persuasion, to cast their votes effectively." Williams, 393 

U.S. at 30. The Court reasoned that the laws in question 

placed "substantially unequal burdens on both the right to 

vote and the right to associate." Id. at 31. The Court stated: 

"In determining whether the State has power to place 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 interest in 

the regulation of a subject within the State's constitutional 

power to regulate can justify limiting First Amendment 

freedoms.' " Id. (citing NAACP v. Button, 371 U.S. 415, 438 

(1963)). 

In the instant case, therefore, we must identify the 

burdens imposed by the Pennsylvania laws. In Patriot Party 

I, the panel, in its equal protection analysis, identified the 

following burdens: First, the ban on minor party crossnomination "burdens individuals who support a minor

party's platform because it forces them to choose among 

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, the ban 

 14 
burdens the political parties themselves because they "may 

prohibit a minor party from nominating its best candidate 

and from forming a critical type of consensual political 

alliance that would help it build support in the community. 

Thus, the challenged laws help to entrench the decided 

organizational advantage that the major parties hold 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 1370-72. 

The Court then proceeded to apply not strict scrutiny, but 

an intermediate level of scrutiny, in which "the State's 

asserted regulatory interests need only be `sufficiently 

weighty to justify the limitation' imposed on the[minor 

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 above 

stated burdens require the same level of scrutiny in an 

equal protection analysis that they do in an associational 

rights analysis, then we must now apply an intermediate 

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 than those 

involved in Timmons. In Timmons, the asserted burdens 

existed in the context of an across-the-board ban on fusion. 

Timmons, 117 S. Ct. at 1370 (noting that the Minnesota 

ban, "which applies to major and minor parties alike, 

simply precludes one party's candidate from appearing on 

the ballot, as that party's candidate, if already nominated 

by another party"). In the instant case, the burden is 

exacerbated because Pennsylvania has allowed the major 

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 magnified when 

 the major parties elect to cross-nominate the same 

 15 
 candidate, as they did in the school board election at 

 issue. When the major parties cross-nominate a 

 candidate, a minor party candidate must fight an 

 uphill election battle against the combined strength of 

 two well-organized and established major parties 

 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 major 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 step is 

to weigh, against the burdens imposed, any plausible 

justification the State has advanced for imposing unequal 

burdens on major and minor parties. Cf. Romer v. Evans, 

517 U.S. 620, 632 (1996) ("[E]ven in the ordinary equal 

protection case calling for the most deferential of standards, 

we insist on knowing the relation between the classification 

adopted and the object to be attained."). Wefind no such 

justification. Although the Department has identified 

justifications, such as preventing ballot manipulation and 

preserving political stability, that were recognized in 

Timmons to be legitimate state interests, see Timmons, 117 

S.Ct. at 1373-74, the Department has not demonstrated 

how these interests are served by the unequal burden 

imposed here. Indeed, the Department acknowledges in its 

brief that it has no idea why the Pennsylvania legislature 

chose to allow major party cross-nomination in thefive 

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 declined to assert any 

interests to justify this discrimination. We note that, in both 

Eshenbaugh's and Childress's case, the District Court served the 

requisite notice on the Attorney General of Pennsylvania, advising that 

the cases challenged the state laws in question, thus 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 Department's defense 

of the statutory scheme in this appeal. In each instance, including this 

appeal, the Attorney General chose not to intervene or defend the 

constitutionality of the challenged laws. 

 16 
As the panel in Patriot Party I explained, "Pennsylvania 

imposes these unequal burdens on the right to vote and the 

right to associate without protecting any significant 

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 interests that 

are "sufficiently weighty" to justify the discriminatory 

treatment of major and minor parties. 

When we consider constitutional challenges to specific 

provisions of a State's election laws, we cannot speculate 

about possible justifications for those provisions. The court 

"must identify and evaluate the precise interests put 

forward by the State as justifications for the burden 

imposed by its rule." Anderson, 460 U.S. at 789; cf. 

Edenfield v. Fane, 507 U.S. 761, 768 (1993) (observing that, 

unlike rational basis review, the intermediate standard of 

review applicable in commercial speech cases "does not 

permit [the Court] to supplant the precise interests put 

forward by the State with other suppositions"). 

Furthermore, our analysis is confined to the four state 

interests asserted by the Department to the District 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 opening brief, and for 

those 

purposes `a passing reference to an issue . . . will not suffice to bring 

that issue before this court.' " Laborers' Int'l Union v. Foster Wheeler 

Corp., 26 F.3d 375, 398 (3d Cir. 1994) (quoting Simmons v. City of 

Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (plurality opinion) 

(Becker, J.)). Even if we were to consider this state interest, however, 

it 

does not persuade us, because the Department fails to explain why the 

interest requires or allows for discrimination against minor parties. 

In addition, the Department, following the dissent in Patriot Party I, 

now tries to assert a state interest in ensuring that partisan voters who 

wish to vote for a "pure" Democrat or Republican know at the time of the 

major party primary whether the major party candidate will accept a 

minor party cross-nomination. The Department, however, in arguing this 

case before the Patriot Party I panel, "never asserted that the 

Commonwealth had any such interest in protecting partisan voters, even 

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

district court constitutes a waiver of the argument." 

Brenner v. Local 514, United Bhd. of Carpenters, 927 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 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." Patriot Party I, 95 F.3d at 264. With 

respect to all four purported state interests, no effort is 

made by the state to show why those interests justify 

permitting the major parties to cross-nominate, while 

forbidding the minor parties from doing so. While such 

interests may be sufficiently weighty in light of Timmons to 

justify a general ban on fusion, they are not sufficiently 

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 the panel 

explained in Patriot Party I, sore losers"are candidates 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 that sore 

loser and disaffiliation laws have been upheld. Council of 

Alternative Political Parties v. Hooks, 121 F.3d 876, 881 (3d 

Cir. 1997) (citing Storer v. Brown, 415 U.S. 724 (1974)).12 

_________________________________________________________________ 

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

I, 

95 F.3d at 264 n.6. The panel concluded that, "[b]ecause the 

Department has shown no interest in pursuing this line 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 does not explain why a 

voter's alleged interest in knowing which "pure" candidates will refuse a 

cross-nomination justifies discrimination against minor parties. 

12. The Court in Timmons relied on Storer, in which the Court "upheld 

a California statute that denied ballot positions to independent 

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

to justify early filing deadlines on the grounds that they 

prevented sore loser candidacies, stating that "they are 

both too broad . . . and too narrow." Id. (citing Anderson, 

460 U.S. at 805 & n.31). Similarly, the Pennsylvania laws 

at issue here cannot be justified as preventing sore loser 

candidacies because they are too broad and too narrow. As 

the panel noted in Patriot Party I, the Pennsylvania laws 

only "prevent sore loser candidacies insofar as they prevent 

a candidate who failed to win either major party primary 

from running as a minor party candidate in the general 

election." Patriot Party I, 95 F.3d at 165. The laws are too 

broad, however, because they bar a third party from

nominating a candidate such as Ms. Childress even though 

she did not lose either primary race and was thus not a 

sore loser. They are too narrow because they do not prevent 

candidates like Mr. Eshenbaugh from continuing on as 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 caused by 

_________________________________________________________________ 

candidates who had voted in the immediately preceding 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 provision in Storer, however, 

differs from the Pennsylvania laws in at least one crucial respect. The 

Court in Timmons noted that in Storer , the challenged law "did not 

discriminate against independent candidates." Timmons, 117 S. Ct. at 

1374 (citing Storer, 415 U.S. at 734). Indeed, in describing the 

California 

statute, the Court in Storer observed that, apart from the fact that an 

independent candidate needed to "qualify for the ballot by demonstrating 

substantial public support" in some other way than standing for a 

primary election, "the qualifications required of the independent 

candidate are very similar to, or identical with, those imposed on party 

candidates." Storer, 415 U.S. at 733. 

Similarly, the Court in Timmons quoted from its decision in Burdick v. 

Takushi, in saying that " `we have repeatedly upheld reasonable, 

politically neutral regulations that have the effect of channeling 

expressive activit[ies] at the polls.' " Timmons, 117 S. Ct. at 1375 

(quoting Burdick, 504 U.S. at 437-38). Because the Pennsylvania laws 

discriminate against minor parties, they are not politically neutral. 

 19 
the monopolization of the ballot by minor candidates and 

the proliferation of parties. The Department, however, 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 major party 

cross-nomination. In upholding Minnesota's general fusion 

ban, the Court in Timmons specifically disclaimed reliance 

on the state's alleged interest in avoiding voter confusion. 

Timmons, 117 S. Ct. at 1375 n.13. This asserted interest 

carries even less weight here. Indeed, the fact that the 

Pennsylvania laws discriminate between major and minor 

parties undermines this asserted interest, because major 

party cross-nomination (which is allowed) would seem to 

pose just as large a risk of voter confusion. Moreover, as 

the panel observed in Patriot Party I, "the Department has 

presented no evidence to indicate that fusion is likely to 

produce a crippling proliferation of minor parties. . . . 

Furthermore, Pennsylvania retains the authority to set 

reasonable threshold requirements for parties seeking 

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 candidate to 

bleed off votes of independent voters to bolster his or her 

major party endorsement. This state interest was not 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 party 

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 supports a 

minor party's platform but does not want to waste a vote on 

a minor candidate may cast a ballot instead on a candidate 

who has been nominated by both major parties. Once 

again, the fact that major parties are allowed to crossnominate undermines this proffered state interest. 

Finally, the argument that the laws serve an interest in 

encouraging new candidates to run as independents is also 

undermined by the fact that major parties may crossnominate. "If the Commonwealth bans cross-nomination by 

minor parties to encourage new candidates for office, it 

 20 
should logically prohibit cross-nomination by major parties 

for the same reason. An across-the-board ban on crossnomination would require the major parties to nominate 

their own candidates, thus increasing the number of

candidates in the field and the level of electoral 

competition." Id. If anything, the current statutory scheme 

may discourage independent candidates. A three-way race 

against two major party candidates would be formidable 

enough for an independent candidate. An independent

candidate would face an even greater challenge running 

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 Pennsylvania's 

discriminatory statutory scheme. The fact that 

Pennsylvania allows major parties to engage in crossnomination in certain local elections, but forbids minor 

parties from so doing, constitutes "invidious discrimination" 

in violation of minor parties' right to equal protection of the 

laws. The facially discriminatory nature of the laws imposes 

a heavier burden on minor parties than a general fusion 

ban of the type considered in Timmons. Moreover, unlike 

the Timmons case, the Department in this case has offered 

no "important" or "sufficiently weighty" state interests that 

justify, even under intermediate scrutiny, the 

discriminatory burdens imposed on minor parties. 

V. Conclusion 

We reaffirm the holding of the Patriot Party I panel that 

25 Pa. Stat. Ann. SS 2936(e) and 2911(e)(5) violate the 

Patriot Party's right to equal protection of the laws by 

banning cross-nomination of candidates by minor parties 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 summary 

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 December 9, 

1996, is affirmed as written. However, because we affirm 

only on equal protection grounds, we will remand the 

Childress case with instructions that the District Court 

delete from Paragraph 3 of that Order the phrase"to free 

 21 
association under the First and Fourteenth Amendments 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) 25 P.S. SS2911(e)(5) 

and 2936(e) (Sections 2911(e)(5) and 2936(e)) are declared to be an 

unconstitutional burden on the right of plaintiff, the Patriot Party of 

Allegheny County, to free association under the First and Fourteenth 

Amendments of the Constitution, and to equal protection of the law 

under the Fourteenth Amendment to the Constitution insofar as they 

prohibit plaintiff, a minor political party, from nominating any person as 

a Patriot Party candidate for any office referred to 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 the provisions of 

Sections 2911(e)(5) and 2963(e) of the Code to prevent a minor political 

party from nominating a candidate for any office referred 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. 

 22 
McKEE, 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 under the 

Equal Protection Clause. I further concur in the majority's 

conclusion that the anti-fusion laws at issue here violate 

the Equal Protection Clause. I believe, however, that, under 

the Equal Protection Clause, when a law both discriminates 

and burdens a fundamental right, strict scrutiny, rather 

than intermediate scrutiny, applies. See Clark v. Jeter, 486 

U.S. 456, 461 (1988) ("Classifications based on race or 

national origin and classifications affecting fundamental 

rights are given the most exacting scrutiny.") (internal 

quotations omitted); Nordlinger v. Hahn, 505 U.S. 1, 10 

(1992) (discriminatory statutes that interfere with a 

fundamental right are subject to strict judicial scrutiny); 

Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58 

(1988) (same). 

The classification here must be narrowly tailored to serve 

a compelling State interest to survive an Equal Protection 

challenge. Indeed, the Supreme Court repeatedly has

applied precisely this standard to review ballot restrictions 

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 applicable 

only to minor parties, the Court stated: "In determining 

whether the State has power to place such unequal 

burdens on a minority group where [associational rights] 

are at stake, the decisions of this Court have consistently 

held that `only a compelling state interest in the regulation 

of a subject within the State's constitutional power to 

regulate can justify limiting First Amendment freedoms.' ") 

(quoting NAACP v. Button, 371 U.S. 415 (1963)); American 

Party of Texas v. White, 415 U.S. 767, 780 (1974) ("We 

agree with the District Court that whether the qualifications 

for ballot position are viewed as substantial burdens on the 

right to associate or as discriminations against parties not 

polling 2% of the last election vote, their validity depends 

upon whether they are necessary to further compelling 

state interests," which cannot be served "equally well in 

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

U.S. 724, 729 (1974) (applying Williams v. Rhodes strict 

scrutiny to review ballot restrictions on independent 

candidates); Illinois State Bd. of Elec. v. Socialist Workers, 

440 U.S. 173, 184-86 (1979) (applying strict scrutiny 

standard to review disparate nominating requirements); see 

also, e.g., Harper v. Virginia State Bd. of Elec., 383 U.S. 

663, 670 (1966) ("close scrutiny" applied to poll tax, which 

discriminates on the basis of wealth, because fundamental 

right infringed); Bullock v. Carter, 405 U.S. 134, 142-44 

(1972) (applying Harper standard to filing fee system). 

As the Supreme Court recognized in Timmons, anti-fusion 

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. Socialist 

Workers Party, 479 U.S. 189, 193 (1986) (recognizing 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 determining 

whether the burdens actually violated the First 

Amendment, the Court stated: 

 Regulations imposing severe burdens on plaintiffs' 

 rights must be narrowly tailored and advance a 

 compelling state interest. Lesser burdens, however, 

 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, the 

Court's decision in Timmons to apply a less exacting 

standard of review was premised on the fact that the 

Minnesota anti-fusion laws were nondiscriminatory. That is 

not our case: Pennsylvania's anti-fusion laws discriminate 

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 believe 

that under established Equal Protection doctrine we must 

 24 
strictly scrutinize Pennsylvania's discriminatory treatment 

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 muster even 

under the less exacting scrutiny applied by the majority, it 

necessarily follows that they do not pass muster under the 

heightened scrutiny standard that I advocate. Accordingly, 

I concur in the majority's result. 

 25 
GREENBERG, Circuit Judge, concurring and dissenting: 

I concur and join in the court's opinion denying the 

Department's motion under Fed. R. Civ. P. 60(b)(6). I add 

the following comments, however, with regard to that 

motion. By the time of our decision in Patriot Party 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 Cities Area 

New Party, 517 U.S. 1219, 116 S.Ct. 1846 (1996). Thus, 

the Department had every reason to believe that the

Supreme Court would review at least a portion of the 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 signs, the 

Department chose not to seek certiorari in Patriot Party I. 

Therefore, it would be difficult to justify granting the Rule 

60(b)(6) motion. Moreover, even though this case has 

ramifications going beyond the interests of the parties, in 

view of the court's decision in No. 96-3677, Childress's 

case, with respect to the equal protection claim, the 

Department cannot obtain effective relief on the merits in 

No. 97-3359. 

While I join in the result in No. 96-3677, with respect to 

Childress, the opinion plainly goes too far and thus I must 

dissent from it. In dissenting in Patriot Party I, I made the 

following point: 

 I recognize that it reasonably could be argued that 

 Pennsylvania could avoid the problem I identify by 

 requiring minor parties to select their candidates prior 

 to the primary election. Of course, such a condition 

 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 candidate before 

 the major party primary election does not affect 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, which is 

 whether the Pennsylvania statutes are unconstitutional 

 `as applied in this case.' Thus, I do not address the 

 possibility that the Pennsylvania statutes might be 

 26 
 unconstitutional if applied in a situation in which the 

 minor party files its nominating papers before the 

 primary for, even if they would be unconstitutional in 

 that circumstance, they validly can be applied here. 

 See Commonwealth v. The First School, 471 Pa. 471, 

 370 A.2d 702, 705-07 (1977). Here the Patriot Party 

 nominated Eshenbaugh after the primary, and he 

 accepted its nomination at that time, and both 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 case 

because, as the majority points out, Childress "perfected 

her nomination as one of the Patriot Party's candidates by 

filing nomination papers with the Department" on May 16, 

1995, "before the municipal primary elections." Majority 

Op. at 5. Accordingly, the question for the court to resolve 

in No. 96-3677 should not be whether 25 Pa. Stat. Ann. 

SS 2936(e) and 2911(e)(5) are unconstitutional as violating 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 her intent 

to cross-file before a primary election. Indeed, the 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 after the 

County refused to permit the Party [to] nominate another 

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 candidate, 

such as Childress, cross-filing before the primaries, 

because a candidate by cross-filing before the primary 

election may seek both major parties' nominations. But 

sections 2936(e) and 2911(e)(5) surely are not 

unconstitutional if applied in circumstances paralleling 

those in Eshenbaugh's case in Patriot Party I, because there 

the candidate was seeking to cross-file at a time when the 

major parties had selected their candidates at the primaries 

 27 
and thus could no longer nominate cross-filing candidates. 

It therefore follows that applying sections 2936(e) and 

2911(e)(5) only when a candidate seeks to cross-file after a 

primary treats a minor party exactly the same as the major 

parties. Consequently, there simply cannot be an equal 

protection problem in those circumstances, as the statutes 

do not place unequal burdens on minor and major parties. 

Thus, the Department need not demonstrate any interest 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 candidate 

cross-files, the majority goes too far. 

I close by making one more point. A court sometimes

must declare a state statute unconstitutional. Nevertheless 

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 should so 

apply it. After all, 1 Pa. Cons. Stat. Ann. S 1925 (1995) 

(emphasis added) provides: 

 The provisions of every statute shall be severable. If 

 any provision of any statute or the application thereof to 

 any person or circumstance is held invalid, the 

 remainder of the statute, and the application of such 

 provision to other persons or circumstances, shall not be 

 affected thereby, unless the court finds that the valid 

 provisions of the statute are so essentially and 

 inseparably connected with, and so depend upon, the 

 void provision or application, that it cannot be 

 presumed the General Assembly would have enacted 

 the remaining valid provisions without the void one; or 

 unless the court finds that the remaining valid 

 provisions, standing alone, are incomplete and are 

 incapable of being executed in accordance with the 

 legislative intent. 

We should follow First School and apply section 1925 here 

because it is clear that the statutes easily can be applied 

constitutionally to a minor party's cross-filing after the 

primary. Moreover, can anyone really believe that the 

 28 
Legislature would not want sections 2936(e) and 2911(e)(5) 

applied to minor party candidates filing after the primary 

merely because they cannot be applied to those filing 

earlier? Surely, the Legislature would want the statutes 

applied so far as is possible. 

The majority indicates that "[b]ecause the Pennsylvania 

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' candidates 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 major 

parties' candidates cannot fuse. Thus, I dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 29