1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-1996

Patriot Party Allegheny v. Allegheny Co. Dept of

Elections

Precedential or Non-Precedential:

Docket 95-3385

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Recommended Citation

"Patriot Party Allegheny v. Allegheny Co. Dept of Elections" (1996). 1996 Decisions. Paper 68.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/68
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 95-3385 

 

 PATRIOT PARTY OF ALLEGHENY COUNTY 

 v. 

 ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS; 

 MARK AS DIRECTOR OF THE ALLEGHENY COUNTY 

 DEPARTMENT OF ELECTIONS 

 THE PATRIOT PARTY 

 OF ALLEGHENY COUNTY, 

 Appellant. 

 

 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Civil Action No. 93-cv-01884) 

 

 

 Argued March 28, 1996

 Before: GREENBERG, ROTH and ROSENN, Circuit Judges 

 (Opinion Filed September 9, l996) 

 

Cornish F. Hitchcock, Esq. (Argued) 

David C. Vladeck, Esq. 

Public Citizen Litigation Group 

1600 20th Street, N.W. 

Washington, D.C. 20009-1001 

Sarah E. Siskind, Esq. 

Davis, Miner, Barnhill & Galland 

44 East Mifflin Street 

Suite 803 

Madison, Wisconsin 53703 

William A. Weiler, Jr., Esq. 
Weiler & Weiler 

4762 Liberty Avenue 

Pittsburgh, PA 15224 

Jonathan B. Robison, Esq. 

712 Allegheny Building 

429 Forbes Avenue 

Pittsburgh, PA 15219 

 Attorneys for Appellant 

Ira Weiss, Esq. 

County Solicitor 

Allan J. Opsitnick, Esq. (Argued) 

Assistant County Solicitor 

Office of Allegheny County Law Department 

445 Fort Pitt Boulevard 

300 Fort Pitt Commons Building 

Pittsburgh, PA 15219 

 Attorneys for Appellees 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge 

 The Allegheny County Patriot Party ("Party") alleges 

that two Pennsylvania election laws have prevented it from 

nominating its chosen candidate for school director, in violation 

of the Party's First and Fourteenth Amendment right of free 

association as well as its Fourteenth Amendment right to equal 

protection of the laws. The challenged laws, 25 Pa. Stat. Ann. 

§§ 2936(e) and 2911(e)(5), prevent a minor political party from 

"cross-nominating" a candidate for political office when that 

candidate has already been nominated for the same office by 

another political party. The Party seeks declaratory and 

injunctive relief pursuant to 42 U.S.C. § 1983 to prevent 

enforcement of the challenged Pennsylvania laws in future 

elections. 

 We hold that the challenged sections of Pennsylvania's 

election code violate the Patriot Party's right of free 

association and its right to equal protection of the laws. The 

state election laws severely burden the Party's right to choose 

its standard-bearer and build its political organization, without 

supporting a compelling countervailing state interest. They also 

facially discriminate against minor political parties and their 

supporters. We will therefore reverse the judgment of the 
district court, enter judgment for the Patriot Party, and remand 

the case for further proceedings consistent with this opinion. 

 The district court properly asserted subject matter 

jurisdiction under 28 U.S.C. §§ 1331 and 1343(3)-(4). We have 

jurisdiction of the district court's final order pursuant to 28 

U.S.C. § 1291. 

 I. 

 The facts of this case are not in dispute. The 

Pennsylvania Election Code explicitly allows candidates for 

certain local offices, including school director, to be nominated 

by both major parties. 25 Pa. Stat. Ann. § 2870(f). Pursuant to 

the Code, several candidates for school director in

Pennsylvania's North Allegheny School District sought the 

nominations of both the Democratic and Republican parties in the 

May 1993 municipal primary. Three candidates were nominated by 

both major parties to run in the November 1993 general election 

for the four available four-year terms. In addition, Michael 

Eshenbaugh sought the nomination of both major parties for the 

one available two-year term. Although Eshenbaugh was nominated 

by the Democratic Party, he lost his bid for the Republican 

nomination. 

 In July 1993, the Patriot Party of Allegheny County, a 

minor political party, see 25 Pa. Stat. Ann. §§ 2831(a)-(b) and 

2872.2, nominated four candidates for school director in the 

North Allegheny School District. Eshenbaugh was one of the 

Patriot Party nominees, and he willingly accepted his nomination 

by the Party. Two sections of the Pennsylvania Code, however, 

voided the Patriot Party's nomination of Eshenbaugh, because he 

had already sought the nomination of the major political 

parties. By letter dated August 10, 1993, Mark Wolosik, 

Director of the Allegheny County Department of Elections ("the 

Department"), explained that because Eshenbaugh had previously 

filed nomination petitions seeking the nominations of the major 

parties, Pennsylvania law prohibited him from filing nomination 

papers to run on a minor party ticket. Wolosik cited 25 Pa. 

Stat. Ann. § 2936(e) as the authority for his ruling, without 

noting that § 2911(e)(5) also prevented Eshenbaugh's dual 

candidacy. See supra note 1. 

 The Patriot Party challenges the constitutionality of 

25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) as applied in this 

case to prevent the Party from nominating Eshenbaugh. Because 

both parties agreed that the facts were undisputed, the district 

court treated the Department's motion to dismiss and the Patriot 

Party's motion for summary judgment as cross-motions for summary 

judgment. See Patriot Party v. Allegheny County Dep't of 

Elections & Mark Wolosik, No. 93-1884, slip op. at 2 n.1 (W.D. 

Pa. June 7, 1995) (hereinafter Patriot Party). The district 

court denied the Patriot Party's free association and equal 

protection claims, holding that the state's legitimate interest 

in regulating its ballot justified the restraints that the 

election code placed on minor parties. Patriot Party, slip op. 

at 11. 

 Our review of the district court's grant of summary 

judgment is plenary. Wheeler v. Towanda Area School Dist., 950 
F.2d 128, 129 (3d Cir. 1991); Public Interest Research Group of 

N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d 

Cir. 1990), cert. denied, 498 U.S. 1109 (1991). We apply the 

same test the district court should have applied initially. 

Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), 

cert. denied, 429 U.S. 1038 (1977). 

 II. 

 Before reaching the merits of the Patriot Party's 

challenge, we must determine whether this controversy is 

justiciable. Eshenbaugh, running on the Democratic ticket only, 

won the two-year term vacancy for school director in the November 

1993 election. Patriot Party, slip op. at 3 n.3. As a result, 

we must ensure that this case has not been mooted by the fact 

that the election in question has taken place and by Eshenbaugh's 

success in that election. "An action becomes moot when '(1) 

there is no reasonable expectation that the alleged events will 

recur . . . and (2) interim relief or events have completely 

eradicated the effects of the violation.'" Zellous v. Broadhead 

Assoc., 906 F.2d 94, 100 (3d Cir. 1990) (quoting Ames v. 

Westinghouse Electric Corp., 864 F.2d 289, 291-92 (3d Cir. 

1988)). 

 Although the 1993 election has come and gone, the 

district court found that "[i]f it were permitted to do so, [the 

Patriot Party] would nominate a candidate who, like Mr. 

Eshenbaugh, has sought the nomination in the primary election by 

both major parties and who has succeeded in winning the 

nomination of one of those parties." Patriot Party, slip op. at 

5. Since this case was filed, the Patriot Party has also 

challenged the Department's decision to reject the Party's crossnomination of a candidate who was nominated by both the 

Democratic and Republican parties. See Patriot Party of 

Allegheny County v. Wolosik, Civ. No. 95-1175 (W.D. Pa.). 

Although this latter controversy differs from our factual 

scenario, it indicates the likelihood that cross-nominations by 

third parties will continue to vex the Pennsylvania Department of 

Elections and the courts. 

 Because cross-nominations by minor political parties 

are still prohibited by the Pennsylvania election laws, this case 

is capable of repetition, yet evading review. Norman v. Reed, 

502 U.S. 279, 287-88 (1992) (citing Moore v. Ogilvie, 394 U.S. 

814, 816 (1969)). There is "every reason to expect the same 

parties to generate a similar, future controversy subject to 

identical time constraints . . .." Id. We hold therefore that 

this case is justiciable. 

 III. Freedom of Association 

 States have broad power to regulate the time, place, 

and manner of elections, but they must do so within the limits 

established by the First and Fourteenth Amendments to the U.S. 

Constitution. Eu v. San Francisco County Democratic Cent. Comm., 

489 U.S. 214, 222 (1989). The protection of the First and 

Fourteenth Amendments extends to partisan political organizations 

as well as to individuals. Id. at 224 ("It is well settled that 

partisan political organizations enjoy freedom of association 

protected by the First and Fourteenth Amendments") (citing 
Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 

(1986); Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality 

opinion)). Thus, a political party, such as the Patriot Party, 

may challenge state regulations that allegedly burden its 

fundamental constitutional right to freedom of association. See, 

e.g., Eu, 489 U.S. 214; Tashjian, 479 U.S. 208. 

 Although no dispositive precedent explicitly discusses 

cross-nomination, a number of Supreme Court decisions touch upon 

the rights of political parties. These cases set out a general 

framework for analyzing constitutional challenges to state 

election laws. Norman, 502 U.S. at 288-89; Anderson v. 

Celebrezze, 460 U.S. 780, 788 (1983). The Court generally 

applies a fact intensive balancing test that weighs the burden 

that the state election law places on a political party against 

the state's asserted justification for the law. 

 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. 

Eu, 489 U.S. at 222. 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. Norman, 502 U.S. 

at 288-89; Anderson, 460 U.S. at 789. 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. Anderson, 460 U.S. at 789. 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. Norman, 502 U.S. at 289; Eu, 489 U.S. at 

222; see also Twin Cities Area New Party v. McKenna, 73 F.3d 196, 

198 (8th Cir. 1996), cert. granted, 116 S. Ct. 1846 (1996); Swamp 

v. Kennedy, 950 F.2d 383, 385 (7th Cir. 1991), cert. denied, 505 

U.S. 1204 (1992)). We proceed, therefore, by first examining 

the burden that the challenged Pennsylvania election laws place 

on the Patriot Party's constitutional rights. We then consider 

the justification that Pennsylvania has proffered to support the 

imposition of this burden. 

 A. Burden on the Patriot Party 

 The Patriot Party alleges that the State's prohibition 

of cross-nomination by minor parties infringes upon its First and 

Fourteenth Amendment 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. We consider these alleged 

burdens in turn. 

 An "antifusion statute" that prevents a political party 

from nominating its candidate of choice burdens a political 

party's First and Fourteenth Amendment rights. The Supreme Court 

has recognized that "[f]reedom of association also encompasses a 

political party's decisions about the identity of, and the 

process for electing, its leaders." Eu, 489 U.S. at 229-30 
(citing Democratic Party of the U.S. v. Wisconsin, 450 U.S. 107, 

123-24 (1981) (State cannot dictate process for selecting 

delegates to national convention) and Cousins v. Wigoda, 419 U.S. 

477 (1975) (State cannot dictate who may sit as convention 

delegate)). In Eu v. San Francisco County Democratic Cent. 

Comm., for example, the Court reviewed the constitutionality of 

California election laws that, inter alia, prohibited the 

governing bodies of various political parties from officially 

endorsing candidates in their own party primaries. 489 U.S. at 

216. The Court stated that 

 [f]reedom of association means not only that an 

 individual voter has the right to associate with the 

 political party of her choice, . . . but also that a 

 political party has a right to "identify the people who 

 constitute the association," . . . and to select a 

 "standard bearer who best represents the party's 

 ideologies and preferences." 

Id. at 224 (emphasis added) (citations omitted). The Court 

recognized that the State's ban on endorsement by the party 

leadership was "clearly a restraint on the right of association," 

id. at 225 (citing Citizens Against Rent Control/Coalition for 

Fair Housing v. Berkeley, 454 U.S. 290, 296 (1981)). It held 

therefore that because the state ban on party endorsements 

burdened free speech and free association, it could survive 

constitutional scrutiny only if it served a compelling 

governmental interest. Id. at 225. 

 Dicta from Tashjian v. Republican Party of Connecticutalso 

indicates that political parties have a protected interest 

in selecting their own candidates, even if the nominee is not a 

party member. The Court explained: 

 Were the State to . . . provide that only Party members 

 might be selected as the Party's chosen nominees for 

 public office, such a prohibition of potential 

 association with nonmembers would clearly infringe upon 

 the rights of the Party's members under the First 

 Amendment to organize with like-minded citizens in 

 support of common political goals. 

479 U.S. at 215; see also id. at 235-36 (Scalia, J., dissenting) 

("Nor is there any question of restricting the ability of the 

Party's members to select whatever candidate they desire"). 

 Like the state election laws in Eu and the hypothetical 

restriction in Tashjian, the Pennsylvania election laws prohibit 

a political party from associating with its candidate of choice. 

Eshenbaugh was the Patriot Party's chosen standard bearer, and he 

was willing to serve as the Party's candidate. Nevertheless, 

Pennsylvania's election laws denied the Party the right to 

nominate him. By denying the Patriot Party the right to choose 

its standard bearer, the Pennsylvania election laws burdened the 

Party's right of free association. See Eu, 489 U.S. at 229-30 

(citing Democratic Party of the U.S., 450 U.S. at 123-24 and 

Cousins, 419 U.S. 477); Tashjian, 479 U.S. at 215. 

 The fact that the state election law in this case 

prevented the Patriot Party from nominating only a handful of 

candidates (those who had already sought the nomination of other 
political parties) does not necessarily lessen the burden on the 

Party's associational rights. In order to assess this burden, we 

must look to the actual effect that the restriction will have on 

the party. An analogy to Norman v. Reed illustrates this point. 

In Norman, the Supreme Court reviewed an Illinois decision that 

barred appellees from appearing on the ballot in a Cook County 

election as members of the Harold Washington Party ("HWP"). 502 

U.S. at 282. State law prohibited appellees from using the HWP 

name in Cook County because they had already used that name to 

establish a party in Chicago. Id. at 286-87. The state court 

decision, if upheld, would thus have prevented a political party 

already established in one locality from branching into other 

parts of the state under the same name. 

 The Supreme Court reversed the state court decision and 

held that the court's application of the Illinois law violated 

the HWP's First Amendment right of free association. Id. at 290. 

Even though the statute prevented new political parties from 

using only a handful of names (those names adopted by preexisting 

parties), the Court looked to the actual effect that the 

restriction would have on the HWP. According to the Court, the 

state court's "Draconian construction of the statute would 

obviously foreclose the development of any political party 

lacking the resources to run a statewide campaign." Id. at 289. 

 Thus, the fact that the restriction in Norman was so 

narrowly tailored that it prevented a political party from 

choosing only the few names that had already been chosen by other 

political parties was not dispositive. The Court looked instead 

to the effect that the law would have on the HWP's efforts to 

organize within the state. Likewise, the fact that the 

Pennsylvania laws prevent minor political parties from choosing 

only a few candidates is not dispositive. The critical issue, 

rather, is the effect of the laws on the ability of minor parties 

to participate meaningfully in the political process. SeeWilliam R. 

Kirschner, Note, Fusion and the Associational Rights 

of Minor Political Parties, 95 Colum. L. Rev. 683, 699 (1995). 

As the Court of Appeals for the Eighth Circuit has observed, the 

"simplistic view that the [minor party] can just pick someone 

else [to be its candidate] does not lessen the burden on the 

[minor party's] right to nominate its candidate of choice." Twin 

Cities, 73 F.3d at 198 (citing Norman, 502 U.S. at 289). Because 

Pennsylvania's election laws prevent the Patriot Party from 

nominating its standard bearer of choice, those laws place a 

cognizable constitutional burden on the Party's right to free 

association. 

 The Patriot Party next argues that in addition to 

nullifying its choice of candidate, Pennsylvania's statutory ban 

on cross-nomination burdens the Party's ability to build an 

effective political organization. Although most states ban 

cross-nomination directly or indirectly, ten states, including 

New York, have a tradition of allowing minor parties to appear on 

the ballot and "fuse" votes with major parties. See Kirschner, 

supra at 683, 685 nn.13-14. In these states, minor parties have 

exerted considerable and sometimes decisive influence on the 

outcome of local, state, and national elections. Id. at 683, 
700-04. At least one historian has documented that in the late 

nineteenth century, fusion "helped to maintain a significant 

third party tradition by guaranteeing that dissenters' votes 

could be more than symbolic protest, that their leaders could 

gain office, and that their demands might be heard." Peter H. 

Argersinger, "A Place on the Ballot": Fusion Politics and 

Antifusion Laws, 85 Am. Hist. Rev. 287, 288-89 (1980). 

 A brief explanation of vote fusion demonstrates its 

importance to minor parties. See Twin Cities, 73 F.3d at 197-98; 

Kirschner, supra at 687. In the typical "winner takes all" 

election, a party's electoral success depends upon its ability to 

win the election or to contribute meaningfully to a candidate's 

victory. Minor parties are usually unable to command sufficient 

votes to win the general election on their own. Therefore, even 

voters who support the minor party's platform are reluctant to 

"waste" votes on minor party candidates perceived as having no 

serious chance of winning. As the Court of Appeals for the 

Eighth Circuit has observed, individuals who support a minor 

party are confronted with a no-win proposition; they may "cast 

their votes for candidates with no realistic chance of winning, 

defect from their party and vote for a major party candidate who 

does, or decline to vote at all." Twin Cities, 73 F.3d at 199. 

 Cross-nomination allows voters to cast their vote for a 

minor party without "wasting" their vote on a candidate with no 

prospect of winning the election. In states that allow crossnomination, several parties may nominate the same candidate. A 

voter simply casts his vote for the candidate on any one of the 

party lines. The general election votes that the candidate 

receives on each party line are added together to determine the 

winner. For example, if the Patriot Party had been allowed to 

cross-nominate Eshenbaugh for school director, Eshenbaugh would 

have been permitted to add the votes that he received on the 

Democratic and Patriot Party lines and count all of those votes 

toward his election (just as Pennsylvania allowed the three 

candidates nominated by both major parties to combine the votes 

they received on each major party line). An individual casting 

his vote on the Patriot Party line could, therefore, register his 

support for the Patriot Party platform without "wasting" his vote 

on a third party candidate who stands little chance of being 

elected. The Patriot Party notes: 

 The most vivid example of fusion's benefits for 

 minor parties occurs where a candidate is elected to 

 office as the nominee of two parties, one major and one 

 minor, and the margin of victory is smaller than the 

 number of votes the candidate received on the minor 

 party's line. The resulting tally . . . demonstrates 

 that the minor party's support was crucial. 

Appellant's Brief at 6. 

 By thus demonstrating its electoral appeal, the minor 

party may win recognition for its policy positions as well as 

increased support from the electorate. If significant numbers of 

voters cast ballots for a major party candidate on a minor party 

line, the candidate may infer that voters like the candidate's 

position on issues that the minor party has raised. The more 
apparent popularity of the minor party's platform would enhance 

its standing with candidates and with voters and allow the minor 

party to compete more effectively for votes. 

 Moreover, minor political parties are not the stepchildren of the American political process. Core First and 

Fourteenth Amendment principles protect their rights to organize 

and to compete for votes. See, e.g., Williams v. Rhodes, 393 

U.S. 23, 31-32 (1968) (noting that laws that give "established 

parties a decided advantage over any new parties struggling for 

existence" burden right to associate). In a line of cases 

including Williams v. Rhodes, Anderson v. Celebrezze, and Norman 

v. Reed, the Supreme Court struck down statutes or practices that 

unnecessarily burdened the ability of minor political parties to 

participate in the political process. 

 In Williams, the Court reviewed state election laws 

that made it "virtually impossible for any party to qualify on 

the ballot except the Republican and Democratic Parties." 393 

U.S. at 25. The Court found that the election laws substantially 

burdened both the right to vote and the right to associate and 

that their application only to minor parties resulted in a denial 

of equal protection of the laws. Id. at 30-31. In striking the 

challenged law, the Court expounded a principle that guides our 

analysis: 

 There is, of course, no reason why two parties should 

 retain a permanent monopoly on the right to have people 

 vote for or against them. Competition in ideas and 

 governmental policies is at the core of our electoral 

 process and of the First Amendment freedoms. New 

 parties struggling for their place must have the time 

 and opportunity to organize in order to meet reasonable 

 requirements for ballot position, just as the old 

 parties have had in the past. 

Id. at 32. 

 The principle that the political process should be open 

to new parties was vindicated again in Anderson v. Celebrezze, 

460 U.S. 780 (1983). In Anderson, a state statute threatened to 

prevent independent presidential candidate John Anderson from 

appearing on the Ohio ballot. The statute required independent 

candidates to file nominating petitions several months before 

candidates of political parties were required to file their 

documentation. 460 U.S. at 782-83. The Supreme Court found that 

the Ohio law effectively prevented late-emerging candidacies 

outside the major parties and burdened independent voters in the 

gathering of signatures. Id. at 792. The Court noted that 

 it is especially difficult for the State to justify a 

 restriction that limits political participation by an 

 identifiable political group whose members share a 

 particular viewpoint . . .. 

 A burden that falls unequally on new or small 

 political parties or on independent candidates 

 impinges, by its very nature, on associational choices 

 protected by the First Amendment. It discriminates 

 against those candidates and--of particular importance- 

 -against those voters whose political preferences lie 
 outside the existing political parties. 

Id. at 793-94 (emphasis added) (citing Clements v. Fashing, 457 

U.S. 957 (1982)). The Court found that the election laws 

interfered with the ability of Ohio's independent voters to 

"enhance their political effectiveness as a group" and thereby 

"threaten[ed] to reduce diversity and competition in the 

marketplace of ideas." Id. at 794. 

 The core First Amendment principles originally 

expounded in Williams and refined in Anderson extend to this 

case. By preventing cross-nomination and fusion, Pennsylvania's 

election laws burdened the Patriot Party's ability to choose a 

candidate and to organize and gain influence in the political 

system. The Party was prohibited by law from associating with 

Eshenbaugh, despite the fact that Eshenbaugh was the Party's 

first choice to be its candidate. It was also prohibited from 

forming a consensual political alliance, which would have 

eliminated the "wasted" vote problem and allowed the Party to 

demonstrate its true electoral strength. Of course, the Party 

was still free to organize and to nominate a candidate who had 

not been nominated by another political party, but by imposing 

its election requirements, the Department undeniably burdened the 

Patriot Party's right to associate. 

 The burden imposed by the Pennsylvania election laws is 

compounded by the fact that Pennsylvania permits the two major 

parties to cross-nominate candidates. This additional burden is 

an important distinction between this case and Twin Cities. In 

Twin Cities, Minnesota imposed a ban on fusion by all parties. 

Thus, minor parties suffered only from the disparate impact of 

the across-the-board ban. The ban on fusion in this case, 

however, applies to minor political parties only. See 25 Pa. 

Stat. Ann. § 2870(f). Therefore, the Pennsylvania election laws, 

unlike the Minnesota laws, discriminate on their face, as well as 

in their impact on major and minor political parties. 

 As a result of this facial discrimination against minor 

parties, the effects of the law are even more striking, with 

significant ramifications for the Patriot Party's right of free 

association. When the major parties cross-nominate a candidate, 

as they did in the school board election, a minor party candidate 

will be required to attract enough votes on the minor party line 

alone to defeat a major party candidate who is allowed to 

aggregate the votes that he receives on both major party lines. 

Although this argument goes more directly to the Patriot Party's 

equal protection claim, see infra Part IV, Anderson reminds us 

that "a burden that falls unequally on new or small political 

parties" also impinges on associational choices protected by the 

First Amendment. 

 In defense of the statutes, the Department averred at 

oral argument that because Pennsylvania's election laws allow 

cross-filing by the major political parties in races for three 

local offices only, the restriction on cross-nomination by minor 

political parties at most imposes a minimal burden on the Patriot 

Party's free association rights. Given the relatively minor 

status of these offices in the state political structure as a 

whole, the Department argued, any burden on the Patriot Party's 
First and Fourteenth Amendment right of free association must be 

correspondingly minor. 

 Based on our reading of Norman, we reject this 

argument. In Norman, the Court recognized that minor political 

parties must often establish themselves at the local level, and 

it characterized as "Draconian" a state court ruling that would 

have "foreclose[d] the development of any political party lacking 

the resources to run a statewide campaign." Norman, 502 U.S. at 

289. Thus, the fact that an election law's effects are limited 

in scope is not dispositive. Our inquiry focuses on the 

practical and legal barriers that the law erects for minor 

political parties seeking to establish themselves as viable 

political alternatives to the major parties. 

 The Patriot Party seeks to cross-nominate a major party 

candidate in a local election so that it can demonstrate the 

popularity of its platform in an election undiluted by the major 

parties' organizational dominance. Like Illinois's restriction 

on using the HWP name, Pennsylvania's ban on fusion may inhibit a 

minor party's transition from fledgling political movement to 

statewide political organization. See id. Thus, this narrow 

application of the prohibition on cross-nomination does not 

eliminate the burden that Pennsylvania's election laws place on 

the rights of minor parties. 

 The two courts of appeals that have addressed this 

issue have split on the result. On facts similar to those in 

this case, the Eighth Circuit Court of Appeals held that laws 

preventing cross-nomination by minor parties severely burden core 

First and Fourteenth Amendment rights of free association: 

 As in Norman, the burden here is severe because 

 Minnesota's laws keep the [minor party] from developing 

 consensual political alliances and thus broadening the 

 base of public participation in and support for its 

 activities. History shows that minor parties have 

 played a significant role in the electoral system where 

 multiple party nomination is legal, but have no 

 meaningful influence where multiple party nomination is 

 banned. 

Twin Cities, 73 F.3d at 199 (citing Kirschner, supra at 700-04). 

As noted above, the burden on the Patriot Party's right of 

association in this case is even heavier than the burden imposed 

in Twin Cities because unlike Minnesota, Pennsylvania allows 

cross-nomination by the major parties. See Anderson, 460 U.S. at 

793-94. 

 The Seventh Circuit Court of Appeals, however, has held 

that a "ban on multiple party nominations does not burden the 

associational rights of political parties . . .." Swamp, 950 

F.2d at 386. The court argued that "[a]llowing minor parties to 

leech onto larger parties for support decreases real competition; 

forcing parties to chose [sic] their own candidates promotes 

competition." Id. at 385. Judges Ripple, Posner, and 

Easterbrook dissented from the Seventh Circuit's refusal to grant 

rehearing en banc in Swamp. 

 We note, finally, that burdens on minor political 

parties translate directly into burdens on individual voters. 
The ban on cross-nomination burdens the associational rights of a 

voter who supports a minor party platform but recognizes that his 

vote will be a political nullity unless he casts it for a major 

party candidate. We do not believe that the First Amendment 

imposes an affirmative obligation on states to maximize support 

for minor political parties. But in this case, a vote cast for a 

party outside the current political mainstream is burdened by 

more than the minor party's lack of political support. The 

Pennsylvania election code has erected an artificial barrier that 

prevents a minor party from forming consensual political 

alliances, and individual supporters of the minor party 

ultimately bear the burden. 

 In light of relevant Supreme Court precedent, the 

history of fusion, and the practical effect of the challenged 

Pennsylvania laws on the Patriot Party's political development, 

we find that 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) severely 

burden the Patriot Party's First and Fourteenth Amendment rights 

of free association. See Twin Cities, 73 F.3d at 198-99. 

Pennsylvania, therefore, must demonstrate that these laws are 

narrowly tailored to serve a compelling state interest. Norman, 

502 U.S. at 289; Eu, 489 U.S. at 222. 

 B. Pennsylvania's Interest in Banning Cross-Nomination 

 The Supreme Court recognizes that a state has a 

"compelling interest in preserving the integrity of its election 

process." Eu, 489 U.S. at 231 (citing Rosario v. Rockefeller, 

410 U.S. 752, 761 (1973)). "As a practical matter," furthermore, 

"there must be a substantial regulation of elections if they are 

to be fair and honest and if some sort of order, rather than 

chaos, is to accompany the democratic process . . .." Storer v. 

Brown, 415 U.S. 724, 730 (1974). To this end, states necessarily 

have adopted comprehensive election codes, id., and "the State's 

important regulatory interests are generally sufficient to 

justify reasonable, nondiscriminatory restrictions." Anderson, 

460 U.S. at 788 (footnoted omitted). 

 Wolosik and the Department of Elections argue that the 

challenged Pennsylvania election laws further four important 

state interests: (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. These justifications do not bear scrutiny. 

 The district court held that the challenged 

Pennsylvania laws are justified as a means to prevent "sore 

loser" candidates from carrying an intraparty squabble into the 

general election. Patriot Party, slip op. at 9-11 (finding 

Patriot Party's argument represents "nothing more than a 'sore 

loser' situation"). "Sore losers" are candidates who lose a 

major party primary but insist on running on a minor party ticket 

in the general election. In Storer v. Brown, the Supreme Court 

considered a California election law that denied a place on the 

general election ballot to any independent candidate who voted in 

the immediately preceding major party primary or registered 

affiliation with a political party at any time within one year 
prior to the immediately preceding primary. Storer, 415 U.S. at 

726. The Court upheld the restriction, noting that it works 

against independent candidates who might run against a party's 

candidate merely to vindicate their own "short-range political 

goals, pique, or personal quarrel." Id. at 735. Thus the 

restriction helped to prevent "splintered parties and 

unrestrained factionalism" by prohibiting unsuccessful primary 

candidates from running as independents in the general election. 

Id. at 736. 

 The district court held in this case that the 

Pennsylvania election laws, like the California election laws 

challenged in Storer, serve an important state interest in 

preventing sore loser candidacies. We do not agree. The 

challenged laws, as applied in this case, did not prevent a "sore 

loser" candidacy. Eshenbaugh was nominated as the Democratic 

candidate and was going to run in the general election regardless 

of the Patriot Party nomination. Eshenbaugh did not run merely 

as an embittered loser of the Republican primary; he was the 

Democratic Party's candidate for office. An individual is not a 

"sore loser" when he has in fact won a major party primary and 

runs in the general election as the standard bearer for a major 

party. If Eshenbaugh's unsuccessful quest for the Republican 

nomination had involved him in a Republican intraparty squabble, 

nothing in the Pennsylvania laws would have prevented him from 

carrying that dispute into the general election once he secured 

the Democratic nomination. Preventing the Patriot Party from 

endorsing the major party candidate in this case could do little 

to limit factionalism and intraparty disputes in the manner 

contemplated by Storer. 

 The Pennsylvania election laws 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. The Pennsylvania laws are 

overbroad for this purpose, however, and they could easily be 

more narrowly tailored to achieve the state's asserted goal of 

averting sore loser candidacies. When an individual runs as the 

nominee of a major party, he can hardly be accused of making the 

general election ballot a "forum for continuing intraparty feuds" 

in the manner that concerned California in Storer. 415 U.S. at 

735. 

 We note also that the sore loser justification could 

not support the sweeping ban on cross-nomination between minor 

parties that is now in place. If an individual runs for and wins 

one minor party nomination only, the sore loser argument does not 

explain why that same individual should not be permitted to 

accept a cross-nomination from another minor party, or, for that 

matter, from a major party. So long as the minor party candidate 

did not recently lose a primary or participate actively in 

another political party, the logic of Storer would not apply to 

the minor party candidate's acceptance of a cross-nomination by 

another major or minor party. 

 The Department also attempts to justify the contested 

election laws as a means to prevent multiple parties from 

nominating the same candidate. The Department argues that a 
proliferation of minor parties on the ballot would confuse voters 

and clog the state's election machinery. Cf. Bullock v. Carter, 

405 U.S. 134, 145 (1972) (state has legitimate interest in 

avoiding voter confusion); Tashjian, 479 U.S. at 221 (same). 

But cf. Tashjian, 479 U.S. at 218 (noting that administrative 

economy and convenience do not necessarily justify infringement 

of First Amendment rights). 

 As a factual matter, there is no evidence in the record 

to support the proposition that myriad small parties will "clog" 

the ballot if cross-nomination is permitted. In Williams v. 

Rhodes, Ohio argued that election laws severely restricting minor 

party access to the ballot were necessary to prevent large 

numbers of parties from clogging the ballot and confusing voters. 

393 U.S. at 33. The Supreme Court observed that 

 the experience of many States . . . demonstrates that 

 no more than a handful of parties attempts to qualify 

 for ballot positions even when a very low number of 

 signatures, such as 1% of the electorate, is required. 

 It is true that the existence of multitudinous 

 fragmentary groups might justify some regulatory 

 control but . . . at the present time this danger seems 

 to us no more than "theoretically imaginable." No such 

 remote danger can justify the immediate and crippling 

 impact on the basic constitutional rights involved in 

 this case. 

Id. (footnotes omitted). 

 We believe that this reasoning applies here. The 

Department has presented no evidence to indicate that fusion is 

likely to produce a crippling proliferation of minor parties. 

See Kirschner, supra at 683-85 (describing New York's successful 

experience with cross-nomination). Furthermore, Pennsylvania 

retains the authority to set reasonable threshold requirements 

for parties seeking admission to the ballot. See Illinois 

Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 184-85 

(1979) (citing Lubin v. Panish, 415 U.S. 709, 715 (1974) and 

Bullock, 405 U.S. at 145). In short, the Department has offered 

no evidence to indicate that the threat of "ballot clogging" in 

this case is any more real than the imaginary threat that the 

Supreme Court rejected in Williams. 

 Although cross-nomination could theoretically lead to a 

proliferation of minor parties, it might also simplify the 

election ballot and increase the amount of information available 

to voters. First, cross-nomination might simplify voter choices 

by reducing the absolute number of candidates appearing on the 

ballot. As more minor parties choose to cross-nominate major 

party candidates rather than field candidates of their own, the 

number of different candidates appearing on the ballot might 

actually decline. See discussion infra (discussing Department 

argument that cross-nomination will reduce number of candidates). 

Thus, cross-nomination might actually lead to fewer candidates 

and a simpler ballot. 

 Second, if a minor party champions specific issues, 

that party's nomination of a major party candidate would signal 

to voters the minor party's belief that that candidate best 
addresses the minor party's specific concerns. Thus, minor 

parties may provide more focused scrutiny of a candidate's 

position on issues of importance to voters. We are chary of 

policies that restrict voter options or information in the name 

of simplicity and orderly administration. As the Supreme Court 

said in Anderson: 

 A state's claim that it is enhancing the ability of its 

 citizenry to make wise decisions by restricting the 

 flow of information to them must be viewed with some 

 skepticism. As we observed in another First Amendment 

 context, it is often true "that the best means to that 

 end is to open the channels of communication rather 

 than to close them." 

460 U.S. at 798 (footnote omitted) (quoting Virginia Pharmacy Bd. 

v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 779 

(1976)); Eu, 489 U.S. at 228; Tashjian, 479 U.S. at 220-222 ("The 

State's legitimate interests in preventing voter confusion and 

providing for educated and responsible voter decisions in no 

respect 'make it necessary to burden [a Party's] rights.'") 

(quoting Anderson, 460 U.S. at 221-22). We are not, therefore, 

persuaded by the Department's arguments concerning ballot 

clogging and voter confusion. 

 The other two explanations that the Department proffers 

to justify the ban on cross-nomination are even less persuasive. 

The Department argues first that the ban on cross-nomination 

prevents a candidate from "bleed[ing] off votes of independent 

voters to bolster his or her major party endorsement." 

Pennsylvania apparently is concerned that cross-nomination would 

allow major party candidates to win minor-party votes that would 

otherwise have gone to minor party candidates. Cf. Swamp, 950 

F.2d at 386 (refusing to allow minor parties to "leech onto" 

larger parties for support for fear that practice will decrease 

real electoral competition). This is not a question of 

candidates "bleeding off" minor-party votes, however; it is a 

voluntary transfusion of minor party support to the major party 

candidate. Cross-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. It is under the 

current system that major party candidates "bleed off" minor 

party votes. When cross-nomination is prohibited, individuals 

who do not want to "waste" their votes may feel compelled to vote 

for a major party candidate--even if they support the minor 

party's platform. 

 Finally, the Department argues that "Storer and the 

Pennsylvania Election Code recognize[] a public policy of 

encouraging new candidates to run as independents and 

discourage[] a situation where one candidate could accept a major 

party nomination and several other minor party nominations 

thereby monopolizing the ballot." The Department argues that 

cross-nomination could allow a major party candidate to reduce 

the support available for competing independent candidates by 

accepting several minor party nominations. This hypothetical 

reduction in the support available for minor party candidates 

would presumably reduce the number of minor party candidates on 
the ballot. This argument sets forth no compelling state 

interest, and the Department's reliance on Storer is misplaced. 

 Storer has little, if anything, to say about the 

importance of encouraging new candidates to run as independents. 

See Storer, 415 U.S. at 732 (noting states' authority to preventcandidates 

from running in general election). The Supreme Court 

made clear in Tashjian that Storer was primarily concerned with 

protecting political parties from external threats. Tashjian, 

479 U.S. at 224. Storer was meant to "prevent the disruption of 

the political parties from without, and not, as in this case, to 

prevent the parties from taking internal steps affecting their 

own process for the selection of candidates." Id. Thus, Storeris simply 

inapposite here. 

 Furthermore, the Department has not demonstrated that a 

minor party's cross-nomination of a willing major party candidate 

would threaten to disrupt political parties in any way. A minor 

party need not nominate a major party candidate and a major party 

candidate need not accept the nomination. See discussion, supranote 4. 

The availability of cross-nomination as an option would 

not prevent minor parties from nominating and supporting their 

own distinct candidates if they chose to do so. Pennsylvania has 

not demonstrated how the possibility of a consensual political 

alliance would threaten political parties from without or 

otherwise implicate the concerns outlined in Storer. As we 

explained, supra, this is not a "sore loser" situation. 

 The Department's argument is also undermined by the 

fact that Pennsylvania permits major parties to cross-nominate 

candidates. If the Commonwealth bans cross-nomination by minor 

parties to encourage new candidates to run for office, it should 

logically prohibit cross-nomination by major parties for the same 

reason. An across-the-board ban on cross-nomination 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. The Commonwealth has offered no reason 

for this distinction between major and minor parties. 

 We therefore find unpersuasive each interest that the 

Department has offered to justify its ban on cross-nomination by 

minor parties. The Department bears the burden of demonstrating 

that the challenged election laws are narrowly tailored to 

protect a compelling state interest. Because a more narrowly 

tailored law would prevent sore-loser candidacies, this case 

falls outside the ambit of Storer. The Department's other 

asserted interests are either unsupported by the record or 

insufficient to justify an outright ban on cross-nomination by 

minor parties. State regulation of cross-nomination might be 

appropriate in some circumstances, but the Department has not 

carried its burden in this case. Thus, we hold that 

Pennsylvania's prohibition of cross-nomination by minor political 

parties violates the Patriot Party's right of free association. 

 IV. Equal Protection of the Laws 

 The Pennsylvania election code facially discriminates 

between major and minor parties. The challenged statutes, 25 Pa. 

Stat. Ann. §§ 2936(e) and 2911(e)(5), operate to prevent crossnomination by minor parties, while 25 Pa. Stat. Ann. § 2870(f) 
allows the major parties to cross-nominate candidates for school 

director and other local offices. The Patriot Party alleges that 

this disparate treatment also violates the Party's Fourteenth 

Amendment right to equal protection of the laws because it 

violates a non-discrimination principle enunciated by the Supreme 

Court in Williams v. Rhodes. See 393 U.S. at 32. Because 

neither Twin Cities nor Swamp involved a ban on cross-nomination 

that facially discriminated against minor parties, we examine for 

the first time in a fusion case the issues presented by the 

Patriot Party's equal protection claim. 

 The district court held that Pennsylvania's election 

laws do not violate the Patriot Party's right to equal 

protection. Patriot Party, slip op. at 11. The court, applying 

the same balancing test that it applied to the free association 

claim, concluded that the "defendants' legitimate interest in 

regulating [the] ballot and election process justifies the 

limited restraints placed upon plaintiff by the challenged 

provisions of the Election Code." Id. Appellees assert that the 

laws should be subject to rational basis review because they do 

not create an "invidious, arbitrary, or irrational"

classification and do not apply to a suspect class. They argue 

that because the classification is rationally related to a 

legitimate government interest in regulating its ballot, it does 

not violate the Fourteenth Amendment. 

 The Supreme Court's major precedent concerning the 

equal protection rights of political parties is Williams v. 

Rhodes, 393 U.S. 33 (1968). In 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. Id. 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. 

 The Court characterized the nature of the equal 

protection burden imposed by the Ohio laws from the perspective 

of both voters and minor political parties. First, the Court 

noted that the election laws placed an unequal burden on voters 

who supported new or small political parties because those voters 

could not cast an effective vote for their party of choice. Id.at 31. 

Second, the election laws placed an unequal burden on 

minor political parties themselves because they were excluded 

from the ballot and thereby denied an equal opportunity to win 

votes. Id. The State election laws burdened protected 

constitutional rights because they operated to "stifle the growth 

of . . . new parties working to increase their strength from year 

to year." Id. at 32. 

 Against these burdens, the Court weighed Ohio's 

arguments in favor of its election laws. The State argued that 

its laws were necessary to promote the stability and integrity of 

the political system and for administrative efficiency. The 

Court examined each of the State's asserted interests in turn, 

and concluded that although states have broad powers to regulate 
voting, Ohio's laws constituted "an invidious discrimination" in 

violation of the Equal Protection Clause. Id. at 31-34. 

 From Williams, we can extrapolate the first principles 

and basic structure of our equal protection analysis. It is 

clear that no State may pass a law regulating elections that 

violates the Fourteenth Amendment's guarantee of equal protection 

of the laws. Williams, 393 U.S. at 29. Of course, "the Equal 

Protection Clause does not make every minor difference in the 

application of laws to different groups a violation of our 

Constitution," id. at 30, but we will examine election laws to 

ensure that the distinctions or classifications that they create 

are not "invidious" under our precedent. Id.; Patriot Party of 

Pennsylvania v. Mitchell, 826 F. Supp. 926 (E.D.Pa. 1993) (citing 

Clements, 457 U.S. at 967), aff'd, 9 F.3d 1540 (3d Cir. 1993). 

 In order to determine whether election laws violate the 

Equal Protection Clause, 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. 

Williams, 393 U.S. at 34. As the Supreme Court stated in 

Williams: "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. at 30 (footnote 

omitted). Thus, 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. 

 It is undisputed that the Pennsylvania election laws 

treat major and minor parties differently. Major parties that 

file nominating petitions and hold primaries are permitted to 

cross-nominate each other's candidates for school board, see 25 

Pa. Stat. Ann. § 2870(f), while minor parties may not crossnominate any candidates, see 25 Pa. Stat. Ann. §§ 2936(e) and 

2911(e)(5). 

 The 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. The 

Pennsylvania laws do not prevent minor parties from nominating 

most individuals or from placing their candidate on the ballot; 

they merely prevent minor parties from nominating the few 

candidates already nominated by other parties. But seediscussion supra at 

__ (discussing Norman v. Reed) [Typescript at 

14-15]. 

 Nevertheless, we believe that Pennsylvania's decision 

to ban cross-nomination by minor parties and to allow crossnomination by major parties constitutes the type of "invidious 

discrimination" prohibited by the Fourteenth Amendment. 

Pennsylvania's decision to ban some consensual political 

alliances and not others 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. This burden 

would be assuaged if minor political parties were accorded an 

equal right to cross-nominate willing major party candidates. 

 The ban on cross-nomination by minor political parties 

also infringes on the the equal protection rights of political 

parties themselves. The challenged election laws may prohibit a 

minor party from nominating its best candidate and from forming a 

critical type of consensual political alliance that would help it 

to 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. 

 The ill effects of these laws are further magnified 

when the major parties elect to cross-nominate the same 

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 ballot 

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. Such an arrangement is a significant burden on a 

minor party's right to equal protection of the laws. 

 Moreover, Pennsylvania imposes these unequal burdens on 

the right to vote and the right to associate without protecting 

any significant countervailing state interest. As already noted, 

the ban on cross-nomination by minor parties is overly broad if 

it is intended merely to prevent sore loser candidacies. The 

other interests asserted by the Department on behalf of the 

Commonwealth simply do not bear scrutiny. See discussion supraat ___-___ 

[Typescript at 26-36]. Furthermore, many of the 

Department's arguments concerning ballot transparency and voter 

choice are undermined by the fact that the Commonwealth allows 

cross-nomination by the major political parties. 

 Pennsylvania's election laws facially discriminate 

against minor political parties in a way that diminishes their 

ability to organize and to compete effectively in the political 

process. The Department offers no compelling justification for 

the Commonwealth's facially discriminatory laws. We hold, 

therefore, that these facially discriminatory laws create an 

"invidious classification" that violates the Equal Protection 

Clause of the Fourteenth Amendment. 

 V. Conclusion 

 The challenged election laws burden the Patriot Party's 

right of free association by preventing the Party from nominating 

the candidate of its choice. They also prevent the Party from 

fusing its votes with those of the major parties in order to 

maximize its appeal to voters and to build its political 

organization. Appellees assert no compelling state interest to 

justify the election laws as applied in this case, and 

Pennsylvania could easily achieve its asserted goal of preventing 

"sore-loser" candidacies with a more narrowly tailored law. 

Pennsylvania's ban on cross-nomination by minor political parties 

therefore violates the Patriot Party's First and Fourteenth 
Amendment right of free association. 

 The laws also violate the Fourteenth Amendment's 

guarantee of equal protection of the laws. They discriminate 

against minor parties and the voters who wish to support them 

without supporting a compelling or even a significant state 

interest. 

 We therefore hold that the challenged Pennsylvania 

election laws, as applied in this case, constitute an 

unconstitutional burden on the Patriot Party's First and 

Fourteenth Amendment rights to free association and equal 

protection. We will therefore reverse the judgment of the 

district court, enter judgment for the Allegheny County Patriot 

Party, and remand the case to the district court for further 

proceedings consistent with this opinion. 

Patriot Party of Allegheny County v. Allegheny County Department 

of Elections, No. 95-3385 

GREENBERG, Circuit Judge, dissenting. 

 I respectfully dissent. As the majority indicates, 

this appeal involves a challenge to Pa. Stat. Ann. tit. 25, §§ 

2936(e) and 2911(e)(5) (1994) "as applied in this case to prevent 

the [Patriot] Party from nominating [Michael] Eshenbaugh" as a 

candidate for school director in the North Allegheny School 

District. Typescript at 5. Eshenbaugh cross-filed for the 

office in both the Democratic and Republican primaries. He won 

the first but lost the second. Thus, at the time that the 

Patriot Party as a minor party attempted to nominate Eshenbaugh 

as its candidate, he already was the Democratic candidate. 

Everyone agrees that the nomination was thus unlawful under 

Pennsylvania law as written. 

 The majority invalidates the statutory bars to 

Eshenbaugh's nomination on First and Fourteenth Amendment 

grounds. It finds that the statutes "severely burden the Patriot 

Party's First and Fourteenth Amendment rights of free 

association." Typescript at 24. It also finds that the statutes 

"facially discriminate[] between major and minor parties" in 

violation of the Equal Protection Clause of the Fourteenth 

Amendment, because they preclude a minor party from participating 

in the cross-nomination of a candidate while allowing major 

parties to do so. Typescript at 34. 

 The majority does not suggest that these First and 

Fourteenth Amendment problems require the invalidation of the 

statutes at issue without further analysis. Quite to the 

contrary, it balances the minor party's constitutional rights 

with the state's interests in precluding the cross-party 

candidacy in question here. It then finds that the state's 

interests do not justify the restrictions, and it thus "hold[s] 

that the challenged Pennsylvania election laws, as applied in 

this case, constitute an unconstitutional burden on the Patriot 

Party's First and Fourteenth Amendment rights to free association 

and equal protection." Typescript at 40. 

 I believe that the methodology used by the majority in 
its well-drafted and thoughtful opinion is correct. I dissent, 

however, because I believe that, as applied in this case, the 

statutes serve a compelling state interest. While the majority 

expresses concern that the Patriot Party's rights be protected, 

it acknowledges that it must consider countervailing interests. 

Under the Pennsylvania scheme, a voter in a primary election in 

which cross-filing is permitted, will know whether a candidate 

has cross-filed or at least that information will be available to 

the voter. Thus, the voters in the primary knew or could have 

known that Eshenbaugh was seeking both the Democratic and 

Republican nominations. That information could be very important 

to a particular voter, as many voters are partisan advocates of 

one or the other major political parties and only will vote for 

candidates from that party. Of course, voters have every right 

to that partisan approach. A voter in a primary may refuse to 

vote for a candidate who has cross-filed with another major 

party, choosing instead to vote for a "pure" Democrat or 

Republican. 

 To the partisan political voter, it might come as a 

shock to discover that he or she voted for a closet advocate of a 

minor political party. In short, while some people see merit in 

fusion tickets, others may be put off by them. I, of course, 

express no opinion on this political point. I, however, do 

express the opinion that the state has a compelling interest in 

ensuring that voters in primary elections not be deceived in the 

electoral process. In this case, a voter in the primary election 

in May 1993 for school director knew or could have known that 

Eshenbaugh was seeking to run as a Democrat and as a Republican 

and the voter could take or leave Eshenbaugh on that basis. If 

the statutes at issue in this case had been invalidated before 

the primary, what the voter could not also have known was that a 

vote for Eshenbaugh also would be a vote for the candidate of the 

Patriot Party. The majority sees merit in "increas[ing] the 

amount of information available to voters," typescript at 29, and 

so do I. The problem with the majority's approach is that it 

deprives the voter of the crucial information of knowing the 

identity of the political parties with which a candidate has an 

affinity. 

 The point I raise should not be shrugged off. Today we 

have single-issue political parties. A Democrat or Republican 

voter might be opposed completely to the ideology of a minor 

party but yet discover after the primary that his or her vote has 

contributed to the fortunes of the minor party by nominating its 

candidate to run as a Democrat or Republican as well. The 

Pennsylvania statutes preclude such stealth situations. The 

majority demonstrates its concern that a minor party be able to 

"build its political organization." Typescript at 3, 14. What 

it overlooks is that a partisan major party voter may not want 

his or her vote used to help the minor party in that effort. 

 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 

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, 370 

A.2d 702, 705-07 (Pa. 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. 

 I make one final point. I infer from the majority 

opinion that it believes that the result it reaches is dependent 

upon the circumstance that Pennsylvania permits major party 

cross-filing in school director elections. Certainly my 

inference is correct at least with respect to the majority's 

equal protection holding, as the majority identifies the 

disparate treatment of a minor as opposed to a major party in the 

statutory scheme that permits candidates to cross-file in major 

party primaries but not to file as both a major and minor party 

candidate. 

 Nevertheless, I do not see how the application of the 

free association rights the majority identifies can be cabined to 

elections in which the state permits some cross-filing. To the 

contrary, it seems logical to me that the majority's approach 

inevitably leads to the conclusion that Pennsylvania (and the 

other jurisdictions in this circuit) must permit cross-filing in 

all elections, so that following any primary election for any 

office, a minor party may nominate any willing major party 

candidate to be the minor party's candidate in that election. 

After all, why are the associational rights of the minor parties 

in any way dependent on the circumstance that a candidate could 

cross-file in the Democratic and Republican primaries? 

 For the foregoing reasons I respectfully dissent. In 

my view, the Pennsylvania statutes as applied in this case are 

constitutional. Furthermore, I believe that the majority opinion 

carries implications which could bring about fundamental changes 

in the election processes in Pennsylvania and the other 

jurisdictions in this circuit by judicial decision. We ought not 

to lay the foundation for such a development. If such changes 

are to come, let the legislatures bring them about.