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. e du/thir dc ir c uit_1996/68UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-3385

PATRIOT PARTY OF ALLEGHENY COUNTY

v.

ALLEGHENY COUNTY DEPARTMENT OF ELECTION S;

MARK AS DIRECTOR OF THE ALLEGHENY COUN TY

DEPARTMENT OF ELECTIONS

THE PATRIOT PART Y

OF ALLEGHENY COU NTY,

Appellant.

On Appeal from the United States District Court for the Western District of Pennsylvani a (D.C. Civil Action No. 93-cv-01884)

Argued March 28, 1996

Before: GREENBERG, ROTH and ROSENN, Circuit Ju dges

(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 rig ht to equal protection of the laws. The challenged laws, 25 Pa . Stat. Ann. §§ 2936(e) and 2911(e)(5), prevent a minor politica l party from "cross-nominating" a candidate for political office when that candidate has already been nominated for the same o ffice by another political party. The Party seeks declarato ry and injunctive relief pursuant to 42 U.S.C. § 1983 to p revent enforcement of the challenged Pennsylvania laws in future

elections. We hold that the challenged sections of Pe nnsylvania's election code violate the Patriot Party's right of free association and its right to equal protection of th e laws. The state election laws severely burden the Party's rig ht to choose its standard-bearer and build its political organiz ation, without supporting a compelling countervailing state intere st. They also facially discriminate against minor political parti es and their supporters. We will therefore reverse the judgment of thedistrict court, enter judgment for the Patriot Part y, and remand

the case for further proceedings consistent with th is opinion. The district court properly asserted subje ct matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(3)-(4 ). We have jurisdiction of the district court's final order pu rsuant to 28

U.S.C. § 1291.

I. The facts of this case are not in dispute. The Pennsylvania Election Code explicitly allows candid ates for certain local offices, including school director, t o 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 soug ht the nominations of both the Democratic and Republican p arties in the May 1993 municipal primary. Three candidates were nominated by both major parties to run in the November 1993 gene ral election for the four available four-year terms. In additio n, Michael Eshenbaugh sought the nomination of both major part ies for the one available two-year term. Although Eshenbaugh w as nominated by the Democratic Party, he lost his bid for the Re publican

nomination. In July 1993, the Patriot Party of Alleghe ny County, a minor political party, see 25 Pa. Stat. Ann. §§ 283 1(a)-(b) and 2872.2, nominated four candidates for school direct or in the North Allegheny School District. Eshenbaugh was on e of the Patriot Party nominees, and he willingly accepted h is nomination by the Party. Two sections of the Pennsylvania Cod e, however, voided the Patriot Party's nomination of Eshenbaugh , because he had already sought the nomination of the major poli tical parties. By letter dated August 10, 1993, Mark Wol osik, Director of the Allegheny County Department of Elec tions ("the Department"), explained that because Eshenbaugh hadpreviously filed nomination petitions seeking the nominations of the major parties, Pennsylvania law prohibited him from filin g nomination papers to run on a minor party ticket. Wolosik cit ed 25 Pa. Stat. Ann. § 2936(e) as the authority for his rulin g, without noting that § 2911(e)(5) also prevented Eshenbaugh' s dual candidacy. See supra note 1. The Patriot Party challenges the constitut ionality of 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5) as appl ied in this case to prevent the Party from nominating Eshenbaug h. Because both parties agreed that the facts were undisputed, the district court treated the Department's motion to dismiss an d the Patriot Party's motion for summary judgment as cross-motion s for summary judgment. See Patriot Party v. Allegheny County De p'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 a nd equal protection claims, holding that the state's legitim ate interest in regulating its ballot justified the restraints t hat the election code placed on minor parties. Patriot Par ty, slip op.

at 11. Our review of the district court's grant o f summary judgment is plenary. Wheeler v. Towanda Area Schoo l Dist., 950F.2d 128, 129 (3d Cir. 1991); Public Interest Resea rch 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 in itially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3 d 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 controver sy is justiciable. Eshenbaugh, running on the Democratic ticket only, won the two-year term vacancy for school director i n 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 b y the fact that the election in question has taken place and b y Eshenbaugh's

success in that election. "An action becomes moot when '(1) there is no reasonable expectation that the allegedevents will recur . . . and (2) interim relief or events have c ompletely

eradicated the effects of the violation.'" Zellous v. Broadhead Assoc., 906 F.2d 94, 100 (3d Cir. 1990) (quoting Am es v. Westinghouse Electric Corp., 864 F.2d 289, 291-92 ( 3d Cir. 1988)). Although the 1993 election has come and go ne, the district court found that "[i]f it were permitted t o do so, [the Patriot Party] would nominate a candidate who, like Mr. Eshenbaugh, has sought the nomination in the primar y 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 ha s 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 Par ty of Allegheny County v. Wolosik, Civ. No. 95-1175 (W.D. Pa.). Although this latter controversy differs from our f actual scenario, it indicates the likelihood that cross-no minations by third parties will continue to vex the Pennsylvania Department of

Elections and the courts. Because cross-nominations by minor politic al parties are still prohibited by the Pennsylvania election l aws, this case is capable of repetition, yet evading review. Norm an v. Reed, 502 U.S. 279, 287-88 (1992) (citing Moore v. Ogilvi e, 394 U.S. 814, 816 (1969)). There is "every reason to expect the same parties to generate a similar, future controversy s ubject to

identical time constraints . . .." Id. We hold th erefore that this case is justiciable.

III. Freedom of Association States have broad power to regulate the ti me, 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 Democrati c Cent. Comm., 489 U.S. 214, 222 (1989). The protection of the Fi rst 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 a ssociation protected by the First and Fourteenth Amendments") (citingTashjian v. Republican Party of Connecticut, 479 U. S. 208, 217

(1986); Elrod v. Burns, 427 U.S. 347, 357 (1976) (p lurality opinion)). Thus, a political party, such as the Pa triot Party, may challenge state regulations that allegedly burd en its fundamental constitutional right to freedom of asso ciation. See, e.g., Eu, 489 U.S. 214; Tashjian, 479 U.S. 208. Although no dispositive precedent explicit ly discusses cross-nomination, a number of Supreme Court decisio ns touch upon the rights of political parties. These cases set o ut a general framework for analyzing constitutional challenges t o state election laws. Norman, 502 U.S. at 288-89; Anderso n v. Celebrezze, 460 U.S. 780, 788 (1983). The Court ge nerally applies a fact intensive balancing test that weighs the burden that the state election law places on a political p arty 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 cha llenged law burdens rights protected by the First and Fourteent h Amendments. Eu, 489 U.S. at 222. If the law does burden protec ted rights, we must gauge the character and magnitude of the burde n on the plaintiff and weigh it against the importance of th e interests that the state proffers to justify the burden. Nor man, 502 U.S. at 288-89; Anderson, 460 U.S. at 789. We examine n ot only the legitimacy and strength of the state's proffered in terests, but the necessity of burdening the plaintiff's rights i n order to protect those interests. Anderson, 460 U.S. at 789 . If the burden on the plaintiff's rights is severe, the sta te's interest must be compelling and the law must be narrowly tai lored 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 electio n laws place on the Patriot Party's constitutional rights. We t hen consider the justification that Pennsylvania has proffered t o 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 t wo ways. First, the restriction prevents the Party from nomi nating the standard bearer who the Party thinks will "most eff ectively advance [its] program and platform." Second, the c hallenged election laws deprive the Patriot Party of an oppor tunity to "fuse" its votes with those of a major party and th ereby to make inroads into the political process. We consider th ese alleged

burdens in turn. An "antifusion statute" that prevents a po litical party from nominating its candidate of choice burdens a p olitical 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. a t 229-30(citing Democratic Party of the U.S. v. Wisconsin, 450 U.S. 107,

123-24 (1981) (State cannot dictate process for sel ecting delegates to national convention) and Cousins v. Wi goda, 419 U.S. 477 (1975) (State cannot dictate who may sit as con vention delegate)). In Eu v. San Francisco County Democrat ic Cent. Comm., for example, the Court reviewed the constitu tionality of California election laws that, inter alia, prohibit ed 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 th at an individual voter has the right to associat e with the political party of her choice, . . . but a lso that a political party has a right to "identify t he people who constitute the association," . . . and to select a "standard bearer who best represents the p arty's ideologies and preferences." Id. at 224 (emphasis added) (citations omitted). T he Court recognized that the State's ban on endorsement by t he party leadership was "clearly a restraint on the right of association," id. at 225 (citing Citizens Against Rent Control/Co alition for Fair Housing v. Berkeley, 454 U.S. 290, 296 (1981)) . It held therefore that because the state ban on party endor sements burdened free speech and free association, it couldsurvive constitutional scrutiny only if it served a compell ing governmental interest. Id. at 225. Dicta from Tashjian v. Republican Party of Connecticutalso indicates that political parties have a protected i nterest in selecting their own candidates, even if the nomi nee 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 no minees for public office, such a prohibition of poten tial association with nonmembers would clearly infringe upon the rights of the Party's members under th e First Amendment to organize with like-minded cit izens 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 abil ity of the Party's members to select whatever candidate they d esire").

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 candida te of choice. Eshenbaugh was the Patriot Party's chosen standard bearer, and he was willing to serve as the Party's candidate. Nev ertheless, Pennsylvania's election laws denied the Party the r ight to nominate him. By denying the Patriot Party the rig ht 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 1 23-24 and Cousins, 419 U.S. 477); Tashjian, 479 U.S. at 215.

The fact that the state election law in th is case prevented the Patriot Party from nominating only a handful of candidates (those who had already sought the nomina tion of otherpolitical parties) does not necessarily lessen the burden on the

Party's associational rights. In order to assess t his burden, we

must look to the actual effect that the restriction will have on the party. An analogy to Norman v. Reed illustrate s this point. In Norman, the Supreme Court reviewed an Illinois d ecision 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 u sing the HWP name in Cook County because they had already used t hat name to establish a party in Chicago. Id. at 286-87. The state court decision, if upheld, would thus have prevented a po litical 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 l aw violated the HWP's First Amendment right of free association . Id. at 290. Even though the statute prevented new political par ties from using only a handful of names (those names adopted by preexisting parties), the Court looked to the actual effect tha t the restriction would have on the HWP. According to th e Court, the

state court's "Draconian construction of the statut e would obviously foreclose the development of any politica l party lacking the resources to run a statewide campaign." Id. at 289. Thus, the fact that the restriction in Nor man was so narrowly tailored that it prevented a political par ty from choosing only the few names that had already been c hosen by other political parties was not dispositive. The Court l ooked 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 f rom choosing only a few candidates is not dispositive. The crit ical issue, rather, is the effect of the laws on the ability of minor parties to participate meaningfully in the political proces s. SeeWilliam R. Kirschner, Note, Fusion and the Associational Right s 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 pi ck someone else [to be its candidate] does not lessen the burd en 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 Pa rty from nominating its standard bearer of choice, those law s place a cognizable constitutional burden on the Party's rig ht to free

association. The Patriot Party next argues that in addi tion 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 st ates ban cross-nomination directly or indirectly, ten states , including New York, have a tradition of allowing minor partie s to appear on the ballot and "fuse" votes with major parties. Se e Kirschner, supra at 683, 685 nn.13-14. In these states, minor parties have

exerted considerable and sometimes decisive influen ce on the outcome of local, state, and national elections. I d. at 683,700-04. At least one historian has documented that in the late

nineteenth century, fusion "helped to maintain a si gnificant third party tradition by guaranteeing that dissente rs' votes could be more than symbolic protest, that their lea ders could gain office, and that their demands might be heard. " Peter H. Argersinger, "A Place on the Ballot": Fusion Polit ics and Antifusion Laws, 85 Am. Hist. Rev. 287, 288-89 (198 0). A brief explanation of vote fusion demonst rates its importance to minor parties. See Twin Cities, 73 F .3d at 197-98; Kirschner, supra at 687. In the typical "winner ta kes 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 comma nd sufficient votes to win the general election on their own. Th erefore, even voters who support the minor party's platform are r eluctant to "waste" votes on minor party candidates perceived a s having no serious chance of winning. As the Court of Appeals for the Eighth Circuit has observed, individuals who suppor t a minor party are confronted with a no-win proposition; the y 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 the ir vote for a minor party without "wasting" their vote on a candi date with no prospect of winning the election. In states that a llow crossnomination, several parties may nominate the same c andidate. A voter simply casts his vote for the candidate on an y one of the party lines. The general election votes that the c andidate receives on each party line are added together to d etermine the winner. For example, if the Patriot Party had been allowed to cross-nominate Eshenbaugh for school director, Eshe nbaugh would have been permitted to add the votes that he receiv ed on the Democratic and Patriot Party lines and count all of those votes toward his election (just as Pennsylvania allowed t he three candidates nominated by both major parties to combi ne the votes they received on each major party line). An indivi dual casting his vote on the Patriot Party line could, therefore , register his support for the Patriot Party platform without "was ting" 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 be nefits 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 smalle r than the

number of votes the candidate received on the minor party's line. The resulting tally . . . d emonstrates 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 signific ant 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 moreapparent popularity of the minor party's platform w ould enhance

its standing with candidates and with voters and al low the minor party to compete more effectively for votes. Moreover, minor political parties are not the stepchildren of the American political process. Core F irst and Fourteenth Amendment principles protect their right s to organize and to compete for votes. See, e.g., Williams v. R hodes, 393 U.S. 23, 31-32 (1968) (noting that laws that give " established parties a decided advantage over any new parties st ruggling for existence" burden right to associate). In a line o f cases including Williams v. Rhodes, Anderson v. Celebrezz e, and Norman v. Reed, the Supreme Court struck down statutes or practices that unnecessarily burdened the ability of minor politic al parties to participate in the political process. In Williams, the Court reviewed state elec tion laws that made it "virtually impossible for any party to qualify on the ballot except the Republican and Democratic Par ties." 393

U.S. at 25. The Court found that the election laws substantially burdened both the right to vote and the right to as sociate and that their application only to minor parties result ed in a denial of equal protection of the laws. Id. at 30-31. In striking the challenged law, the Court expounded a principle tha t guides our analysis: There is, of course, no reason why two par ties should retain a permanent monopoly on the right t o have people vote for or against them. Competition in ideas and governmental policies is at the core of ou r electoral process and of the First Amendment freedom s. New parties struggling for their place must ha ve the time and opportunity to organize in order to me et reasonable requirements for ballot position, just as the old parties have had in the past.

Id. at 32. The principle that the political process s hould 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 And erson from appearing on the Ohio ballot. The statute requiredindependent candidates to file nominating petitions several mon ths before candidates of political parties were required to fi le their documentation. 460 U.S. at 782-83. The Supreme Co urt found that the Ohio law effectively prevented late-emerging ca ndidacies outside the major parties and burdened independent voters in the gathering of signatures. Id. at 792. The Court no ted that it is especially difficult for the State t o justify a restriction that limits political particip ation 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 candid ates impinges, by its very nature, on associati onal choices protected by the First Amendment. It disc riminates against those candidates and--of particula r importance- -against those voters whose political pref erences lieoutside the existing political parties.

Id. at 793-94 (emphasis added) (citing Clements v. Fashing, 457 U.S. 957 (1982)). The Court found that the electio n laws interfered with the ability of Ohio's independent v oters to "enhance their political effectiveness as a group" and thereby "threaten[ed] to reduce diversity and competition i n the marketplace of ideas." Id. at 794. The core First Amendment principles origin ally expounded in Williams and refined in Anderson exten d to this case. By preventing cross-nomination and fusion, P ennsylvania'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 assoc iating with Eshenbaugh, despite the fact that Eshenbaugh was th e Party's first choice to be its candidate. It was also proh ibited from forming a consensual political alliance, which woul d have eliminated the "wasted" vote problem and allowed th e Party to demonstrate its true electoral strength. Of course , the Party was still free to organize and to nominate a candid ate who had not been nominated by another political party, but by imposing its election requirements, the Department undeniabl y burdened the Patriot Party's right to associate. The burden imposed by the Pennsylvania ele ction laws is compounded by the fact that Pennsylvania permits th e two major parties to cross-nominate candidates. This additio nal burden is an important distinction between this case and Twin Cities. In Twin Cities, Minnesota imposed a ban on fusion by a ll parties. Thus, minor parties suffered only from the disparat e impact of

the across-the-board ban. The ban on fusion in thi s 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 fa ce, as well as in their impact on major and minor political partie s. As a result of this facial discrimination against minor parties, the effects of the law are even more strik ing, with significant ramifications for the Patriot Party's r ight of free association. When the major parties cross-nominate a candidate, as they did in the school board election, a minor p arty candidate will be required to attract enough votes on the min or party line alone to defeat a major party candidate who is allo wed to aggregate the votes that he receives on both major party lines. Although this argument goes more directly to the Pa triot 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 pro tected 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 race s for three local offices only, the restriction on cross-nomina tion by minor political parties at most imposes a minimal burden on the Patriot Party's free association rights. Given the relativ ely minor status of these offices in the state political stru cture as a whole, the Department argued, any burden on the Pat riot Party'sFirst and Fourteenth Amendment right of free associ ation must be

correspondingly minor. Based on our reading of Norman, we reject this argument. In Norman, the Court recognized that min or political parties must often establish themselves at the loca l level, and

it characterized as "Draconian" a state court rulin g 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 o n the practical and legal barriers that the law erects fo r minor political parties seeking to establish themselves a s 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 demons trate the popularity of its platform in an election undilutedby 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 m ovement to statewide political organization. See id. Thus, t his narrow application of the prohibition on cross-nomination does not eliminate the burden that Pennsylvania's election l aws place on the rights of minor parties. The two courts of appeals that have addres sed this issue have split on the result. On facts similar t o those in this case, the Eighth Circuit Court of Appeals heldthat laws preventing cross-nomination by minor parties severe ly burden core First and Fourteenth Amendment rights of free assoc iation: As in Norman, the burden here is severe be cause Minnesota's laws keep the [minor party] fr om developing consensual political alliances and thus br oadening the base of public participation in and suppor t for its activities. History shows that minor part ies have played a significant role in the electoral system where multiple party nomination is legal, but ha ve no meaningful influence where multiple party nomination is

banned. Twin Cities, 73 F.3d at 199 (citing Kirschner, supr a at 700-04). As noted above, the burden on the Patriot Party's r ight of

association in this case is even heavier than the b urden imposed in Twin Cities because unlike Minnesota, Pennsylvan ia allows cross-nomination by the major parties. See Anderso n, 460 U.S. at

793-94. The Seventh Circuit Court of Appeals, howe ver, 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 min or parties to leech onto larger parties for support decreases rea l 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 re fusal to grant rehearing en banc in Swamp. We note, finally, that burdens on minor po litical parties translate directly into burdens on individu al voters.The ban on cross-nomination burdens the association al rights of a

voter who supports a minor party platform but recog nizes 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 maxi mize support for minor political parties. But in this case, a v ote cast for a party outside the current political mainstream is b urdened by more than the minor party's lack of political suppo rt. The Pennsylvania election code has erected an artificia l barrier that prevents a minor party from forming consensual poli tical alliances, and individual supporters of the minor p arty ultimately bear the burden. In light of relevant Supreme Court precede nt, 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 Ame ndment rights of free association. See Twin Cities, 73 F.3d at 1 98-99. Pennsylvania, therefore, must demonstrate that thes e laws are narrowly tailored to serve a compelling state inter est. Norman, 502 U.S. at 289; Eu, 489 U.S. at 222. B. Pennsylvania's Interest in Banning Cross-N omination 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. R ockefeller, 410 U.S. 752, 761 (1973)). "As a practical matter," furthermore, "there must be a substantial regulation of election s if they are to be fair and honest and if some sort of order, ra ther than chaos, is to accompany the democratic process . . . ." Storer v. Brown, 415 U.S. 724, 730 (1974). To this end, stat es necessarily have adopted comprehensive election codes, id., and"the State's important regulatory interests are generally suffic ient to justify reasonable, nondiscriminatory restrictions. " Anderson, 460 U.S. at 788 (footnoted omitted). Wolosik and the Department of Elections ar gue that the challenged Pennsylvania election laws further four important state interests: (1) preventing "sore loser" candi dacies; (2) preventing individual candidates from "monopolizing " the ballot and causing voter confusion; (3) preventing a candi date from "bleed[ing] off votes of independent voters to bols ter his or her major party endorsement"; and (4) encouraging new c andidates to run as independents. These justifications do not b ear scrutiny. The district court held that the challenged Pennsylvania laws are justified as a means to preve nt "sore loser" candidates from carrying an intraparty squab ble into the general election. Patriot Party, slip op. at 9-11 (finding Patriot Party's argument represents "nothing more t han a 'sore loser' situation"). "Sore losers" are candidates w ho lose a major party primary but insist on running on a mino r party ticket in the general election. In Storer v. Brown, the S upreme Court

considered a California election law that denied a place on the general election ballot to any independent candidat e who voted in the immediately preceding major party primary or re gistered affiliation with a political party at any time with in one yearprior 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 agains t a party's candidate merely to vindicate their own "short-rang e political goals, pique, or personal quarrel." Id. at 735. T hus the restriction helped to prevent "splintered parties a nd unrestrained factionalism" by prohibiting unsuccess ful primary candidates from running as independents in the gene ral election.

Id. at 736.

The district court held in this case that the Pennsylvania election laws, like the California ele ction laws challenged in Storer, serve an important state inte rest in preventing sore loser candidacies. We do not agree . The challenged laws, as applied in this case, did not p revent a "sore loser" candidacy. Eshenbaugh was nominated as the Democratic candidate and was going to run in the general elect ion regardless of the Patriot Party nomination. Eshenbaugh did no t run merely as an embittered loser of the Republican primary; h e was the Democratic Party's candidate for office. An indivi dual 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 intrapa rty squabble, nothing in the Pennsylvania laws would have prevent ed him from carrying that dispute into the general election onc e he secured the Democratic nomination. Preventing the Patriot Party from endorsing the major party candidate in this case co uld do little to limit factionalism and intraparty disputes in th e manner contemplated by Storer. The Pennsylvania election laws prevent sore lo ser 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 Pennsylvani a laws are overbroad for this purpose, however, and they couldeasily be more narrowly tailored to achieve the state's asser ted goal of averting sore loser candidacies. When an individua l runs as the nominee of a major party, he can hardly be accused of making the general election ballot a "forum for continuing int raparty 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 be tween minor parties that is now in place. If an individual run s for and wins one minor party nomination only, the sore loser arg ument does not explain why that same individual should not be perm itted to accept a cross-nomination from another minor party, or, for that matter, from a major party. So long as the minor p arty candidate did not recently lose a primary or participate acti vely in another political party, the logic of Storer would not apply to the minor party candidate's acceptance of a cross-n omination by another major or minor party. The Department also attempts to justify the co ntested election laws as a means to prevent multiple partie s from nominating the same candidate. The Department argu es that aproliferation of minor parties on the ballot would confuse voters

and clog the state's election machinery. Cf. Bullo ck v. Carter, 405 U.S. 134, 145 (1972) (state has legitimate inte rest in avoiding voter confusion); Tashjian, 479 U.S. at 22 1 (same). But cf. Tashjian, 479 U.S. at 218 (noting that admi nistrative 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 partie s will "clog" the ballot if cross-nomination is permitted. In Wi lliams v. Rhodes, Ohio argued that election laws severely res tricting minor party access to the ballot were necessary to preven t large numbers of parties from clogging the ballot and con fusing voters. 393 U.S. at 33. The Supreme Court observed that the experience of many States . . . demons trates 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 multitudi nous fragmentary groups might justify some regu latory control but . . . at the present time this danger seems to us no more than "theoretically imaginab le." No such remote danger can justify the immediate an d crippling impact on the basic constitutional rights involved in

this case. Id. (footnotes omitted). We believe that this reasoning applies her e. The Department has presented no evidence to indicate th at fusion is likely to produce a crippling proliferation of mino r parties. See Kirschner, supra at 683-85 (describing New York 's successful experience with cross-nomination). Furthermore, Pe nnsylvania retains the authority to set reasonable threshold r equirements for parties seeking admission to the ballot. See I llinois 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 Departmen t has offered

no evidence to indicate that the threat of "ballot clogging" in this case is any more real than the imaginary threa t that the Supreme Court rejected in Williams. Although cross-nomination could theoretica lly lead to a proliferation of minor parties, it might also simpl ify the

election ballot and increase the amount of informat ion available to voters. First, cross-nomination might simplify voter choices by reducing the absolute number of candidates appea ring on the ballot. As more minor parties choose to cross-nomi nate major party candidates rather than field candidates of th eir own, the number of different candidates appearing on the bal lot might actually decline. See discussion infra (discussing Department argument that cross-nomination will reduce number o f candidates). Thus, cross-nomination might actually lead to fewer candidates and a simpler ballot. Second, if a minor party champions specifi c issues, that party's nomination of a major party candidate would signal to voters the minor party's belief that that candid ate bestaddresses the minor party's specific concerns. Thu s, minor

parties may provide more focused scrutiny of a cand idate'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 S upreme Court

said in Anderson: A state's claim that it is enhancing the a bility of its citizenry to make wise decisions by restri cting the

flow of information to them must be viewedwith some skepticism. As we observed in another Fir st Amendment context, it is often true "that the best m eans to that end is to open the channels of communicati on rather

than to close them." 460 U.S. at 798 (footnote omitted) (quoting Virgini a 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 co nfusion and providing for educated and responsible voter decisi ons in no respect 'make it necessary to burden [a Party's] ri ghts.'") (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 Depart ment proffers to justify the ban on cross-nomination are even les s persuasive. The Department argues first that the ban on cross-n omination prevents a candidate from "bleed[ing] off votes of independent voters to bolster his or her major party endorsemen t." Pennsylvania apparently is concerned that cross-nom ination would allow major party candidates to win minor-party vot es that would otherwise have gone to minor party candidates. Cf. Swamp, 950 F.2d at 386 (refusing to allow minor parties to "le ech onto" larger parties for support for fear that practice w ill decrease real electoral competition). This is not a questio n of candidates "bleeding off" minor-party votes, howeve r; it is a voluntary transfusion of minor party support to the major party

candidate. Cross-nomination will not increase a ma jor party's share of minor party votes unless the minor party v oluntarily nominates the major party candidate as its own. It is under the current system that major party candidates "bleed o ff" 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 t he minor party's platform. Finally, the Department argues that "Store r and the Pennsylvania Election Code recognize[] a public pol icy of encouraging new candidates to run as independents a nd discourage[] a situation where one candidate could accept a major party nomination and several other minor party nomi nations thereby monopolizing the ballot." The Department a rgues that cross-nomination could allow a major party candidat e to reduce the support available for competing independent can didates by accepting several minor party nominations. This hy pothetical reduction in the support available for minor party candidates would presumably reduce the number of minor party c andidates onthe ballot. This argument sets forth no compelling state

interest, and the Department's reliance on Storer i s misplaced. Storer has little, if anything, to say abo ut the importance of encouraging new candidates to run as independents. See Storer, 415 U.S. at 732 (noting states' authori ty to preventcandidates from running in general election). The Supreme Cou rt made clear in Tashjian that Storer was primarily co ncerned 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 affe cting their own process for the selection of candidates." Id. Thus, Storeris simply inapposite here. Furthermore, the Department has not demons trated that a minor party's cross-nomination of a willing major p arty candidate would threaten to disrupt political parties in any way. A minor party need not nominate a major party candidate anda major party candidate need not accept the nomination. See disc ussion, supranote 4. The availability of cross-nomination as an option w ould not prevent minor parties from nominating and suppo rting their own distinct candidates if they chose to do so. Pe nnsylvania has not demonstrated how the possibility of a consensua l political alliance would threaten political parties from with out or otherwise implicate the concerns outlined in Storer . As we explained, supra, this is not a "sore loser" situat ion. The Department's argument is also undermin ed by the fact that Pennsylvania permits major parties to cro ss-nominate

candidates. If the Commonwealth bans cross-nominat ion by minor parties to encourage new candidates to run for offi ce, it should logically prohibit cross-nomination by major partie s for the same

reason. An across-the-board ban on cross-nominatio n would require the major parties to nominate their own can didates, thus increasing the number of candidates in the field an d the level of electoral competition. The Commonwealth has offere d no reason for this distinction between major and minor partie s. We therefore find unpersuasive each intere st 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 tail ored to protect a compelling state interest. Because a mor e 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 re cord or insufficient to justify an outright ban on cross-no mination by minor parties. State regulation of cross-nominatio n might be appropriate in some circumstances, but the Departme nt has not carried its burden in this case. Thus, we hold tha t Pennsylvania's prohibition of cross-nomination by m inor political parties violates the Patriot Party's right of free association. IV. Equal Protection of the Laws The Pennsylvania election code facially di scriminates between major and minor parties. The challenged st atutes, 25 Pa. Stat. Ann. §§ 2936(e) and 2911(e)(5), operate to pr event crossnomination by minor parties, while 25 Pa. Stat. Ann . § 2870(f)allows the major parties to cross-nominate candidat es for school

director and other local offices. The Patriot Part y alleges that this disparate treatment also violates the Party's Fourteenth Amendment right to equal protection of the laws bec ause 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 cro ss-nomination that facially discriminated against minor parties, we examine for the first time in a fusion case the issues presente d 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 eq ual protection. Patriot Party, slip op. at 11. The co urt, applying the same balancing test that it applied to the free association claim, concluded that the "defendants' legitimate i nterest in regulating [the] ballot and election process justif ies the limited restraints placed upon plaintiff by the cha llenged provisions of the Election Code." Id. Appellees a ssert that the laws should be subject to rational basis review bec ause 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 relat ed to a legitimate government interest in regulating its ba llot, it does

not violate the Fourteenth Amendment. The Supreme Court's major precedent concer ning the equal protection rights of political parties is Wil liams v. Rhodes, 393 U.S. 33 (1968). In Williams, Ohio elec tion laws made it virtually impossible for new or small political parties to be placed on the state ballot for the selection of pre sidential and vice presidential candidates. Id. at 24. Thus, th e challenged laws violated the constitutional guarantee of equal protection because they "[gave] the two old, established parti es a decided advantage over any new parties struggling for exist ence 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 burd en on voters who supported new or small political parties becaus e 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 wer e excluded from the ballot and thereby denied an equal opportu nity to win votes. Id. The State election laws burdened prote cted constitutional rights because they operated to "sti fle the growth of . . . new parties working to increase their stre ngth from year to year." Id. at 32. Against these burdens, the Court weighed O hio's arguments in favor of its election laws. The State argued that its laws were necessary to promote the stability an d integrity of the political system and for administrative efficie ncy. The

Court examined each of the State's asserted interes ts in turn, and concluded that although states have broad power s to regulatevoting, Ohio's laws constituted "an invidious discr imination" in

violation of the Equal Protection Clause. Id. at 3 1-34. From Williams, we can extrapolate the firs t principles and basic structure of our equal protection analysi s. It is clear that no State may pass a law regulating elect ions that violates the Fourteenth Amendment's guarantee of eq ual protection of the laws. Williams, 393 U.S. at 29. Of course, "the Equal Protection Clause does not make every minor differe nce in the application of laws to different groups a violation of our Constitution," id. at 30, but we will examine elect ion laws to

ensure that the distinctions or classifications tha t they create are not "invidious" under our precedent. Id.; Patr iot 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 law s violate the Equal Protection Clause, we must measure the totali ty of the burden that the laws place on the voting and associ ational 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 sta ted in Williams: "In determining whether or not a state la w violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which t he State claims to be protecting, and the interests of those who are disadvantaged by the classification." Id. at 30 (f ootnote 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 ele ction laws treat major and minor parties differently. Major p arties that file nominating petitions and hold primaries are pe rmitted to

cross-nominate each other's candidates for school b oard, see 25 Pa. Stat. Ann. § 2870(f), while minor parties may n ot crossnominate any candidates, see 25 Pa. Stat. Ann. §§ 2 936(e) and 2911(e)(5). The restriction in Williams, which prevent ed minor parties from appearing on the ballot, was undoubted ly a more severe burden on the rights of minor parties than t he restriction imposed by the state election laws in this case. T he 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 t he 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 all ow crossnomination by major parties constitutes the type of "invidious discrimination" prohibited by the Fourteenth Amendm ent. Pennsylvania's decision to ban some consensual poli tical

alliances and not others burdens individuals who su pport a minor party's platform because it forces them to choose a mong three unsatisfactory alternatives: "wasting" a vote on a minor party candidate with little chance of winning, voting for a second-choice major party candidate, and not voting at all . This burden

would be assuaged if minor political parties were a ccorded an equal right to cross-nominate willing major party c andidates. The ban on cross-nomination by minor polit ical parties also infringes on the the equal protection rights o f political parties themselves. The challenged election laws m ay 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 chall enged laws help to entrench the decided organizational advanta ge 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 agai nst the combined strength of two well-organized and establi shed major parties without even the prospect of forming its ow n ballot

alliances. If a vote is "wasted" when it is cast f or a minor party candidate running against two major party can didates, it is a fortiori wasted when the major parties unite behi nd one candidate. Such an arrangement is a significant bu rden on a minor party's right to equal protection of the laws

. Moreover, Pennsylvania imposes these unequ al burdens on the right to vote and the right to associate withou t protecting any significant countervailing state interest. As already noted, the ban on cross-nomination by minor parties is ove rly broad if it is intended merely to prevent sore loser candida cies. The other interests asserted by the Department on behal f of the Commonwealth simply do not bear scrutiny. See disc ussion supraat ___-___ [Typescript at 26-36]. Furthermore, many of the Department's arguments concerning ballot transparen cy and voter choice are undermined by the fact that the Commonwe alth allows cross-nomination by the major political parties. Pennsylvania's election laws facially disc riminate against minor political parties in a way that dimin ishes their ability to organize and to compete effectively in t he political process. The Department offers no compelling justi fication for the Commonwealth's facially discriminatory laws. W e 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 Pa triot Party's right of free association by preventing the Party f rom 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 poli tical 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 tailo red law. Pennsylvania's ban on cross-nomination by minor pol itical parties therefore violates the Patriot Party's First and Fo urteenthAmendment right of free association.

The laws also violate the Fourteenth Amend ment's guarantee of equal protection of the laws. They di scriminate against minor parties and the voters who wish to su pport them without supporting a compelling or even a significa nt state

interest. We therefore hold that the challenged Penn sylvania election laws, as applied in this case, constitute an unconstitutional burden on the Patriot Party's Firs t and Fourteenth Amendment rights to free association andequal protection. We will therefore reverse the judgment of the district court, enter judgment for the Allegheny Co unty Patriot Party, and remand the case to the district court fo r further proceedings consistent with this opinion. Patriot Party of Allegheny County v. Allegheny Coun ty Department of Elections, No. 95-3385

GREENBERG, Circuit Judge, dissenting. I respectfully dissent. As the majority i ndicates, this appeal involves a challenge to Pa. Stat. Ann. tit. 25, §§ 2936(e) and 2911(e)(5) (1994) "as applied in this c ase to prevent the [Patriot] Party from nominating [Michael] Eshen baugh" as a candidate for school director in the North Alleghen y School District. Typescript at 5. Eshenbaugh cross-filedfor the office in both the Democratic and Republican primar ies. He won the first but lost the second. Thus, at the time t hat the Patriot Party as a minor party attempted to nominat e Eshenbaugh as its candidate, he already was the Democratic can didate. Everyone agrees that the nomination was thus unlawf ul under Pennsylvania law as written. The majority invalidates the statutory bar s to Eshenbaugh's nomination on First and Fourteenth Ame ndment grounds. It finds that the statutes "severely burd en the Patriot Party's First and Fourteenth Amendment rights of fr ee association." Typescript at 24. It also finds tha t the statutes "facially discriminate[] between major and minor pa rties" in violation of the Equal Protection Clause of the Fou rteenth Amendment, because they preclude a minor party from participating

in the cross-nomination of a candidate while allowi ng major parties to do so. Typescript at 34. The majority does not suggest that these F irst and Fourteenth Amendment problems require the invalidat ion of the statutes at issue without further analysis. Quite to the contrary, it balances the minor party's constitutio nal 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 t hus "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 fr ee association and equal protection." Typescript at 40. I believe that the methodology used by the majority inits 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 b e protected, it acknowledges that it must consider countervailin g 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 b e available to the voter. Thus, the voters in the primary knew or could have known that Eshenbaugh was seeking both the Democrat ic 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 w ill vote for candidates from that party. Of course, voters have every right to that partisan approach. A voter in a primary ma y refuse to

vote for a candidate who has cross-filed with anoth er major party, choosing instead to vote for a "pure" Democr at 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, how ever, do express the opinion that the state has a compelling interest in ensuring that voters in primary elections not be de ceived in the electoral process. In this case, a voter in the pr imary 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 tha t basis. If

the statutes at issue in this case had been invalid ated before the primary, what the voter could not also have kno wn was that a vote for Eshenbaugh also would be a vote for the ca ndidate of the Patriot Party. The majority sees merit in "increas [ing] the amount of information available to voters," typescr ipt at 29, and so do I. The problem with the majority's approach is that it deprives the voter of the crucial information of kn owing the identity of the political parties with which a cand idate has an affinity. The point I raise should not be shrugged o ff. Today we have single-issue political parties. A Democrat or Republican voter might be opposed completely to the ideology o f a minor party but yet discover after the primary that his o r her vote has contributed to the fortunes of the minor party by n ominating its candidate to run as a Democrat or Republican as wel l. The Pennsylvania statutes preclude such stealth situati ons. The majority demonstrates its concern that a minor part y be able to "build its political organization." Typescript at 3, 14. What it overlooks is that a partisan major party voter m ay not want his or her vote used to help the minor party in tha t effort. I recognize that it reasonably could be ar gued that Pennsylvania could avoid the problem I identify by requiring minor parties to select their candidates prior to t he primary election. Of course, such a condition would restri ct the minor party's flexibility and would have problems of its own. In anyevent, the possibility that a minor party could des ignate its

candidate before the major party primary election d oes not affect my analysis. Rather, I take this case as it has be en presented by the parties to this appeal and on the basis on w hich the majority decides it, which is whether the Pennsylva nia statutes are unconstitutional "as applied in this case." Th us, I do not address the possibility that the Pennsylvania statu tes might be unconstitutional if applied in a situation in which the minor party files its nominating papers before the primar y 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 Part y nominated Eshenbaugh after the primary, and he accepted its n omination at that time, and both the district court and the majo rity 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 maj or party cross-filing in school director elections. Certain ly my inference is correct at least with respect to the m ajority's equal protection holding, as the majority identifie s the disparate treatment of a minor as opposed to a majo r party in the statutory scheme that permits candidates to cross-f ile in major party primaries but not to file as both a major andminor party

candidate. Nevertheless, I do not see how the applica tion of the free association rights the majority identifies can be cabined to elections in which the state permits some cross-fil ing. To the contrary, it seems logical to me that the majority' s approach inevitably leads to the conclusion that Pennsylvani a (and the other jurisdictions in this circuit) must permit cr oss-filing in all elections, so that following any primary electi on for any office, a minor party may nominate any willing majo r 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 can didate could cross-file in the Democratic and Republican primari es? For the foregoing reasons I respectfully d issent. In my view, the Pennsylvania statutes as applied in th is case are constitutional. Furthermore, I believe that the ma jority opinion carries implications which could bring about fundam ental changes in the election processes in Pennsylvania and the o ther jurisdictions in this circuit by judicial decision. We ought not to lay the foundation for such a development. If s uch changes are to come, let the legislatures bring them about.