Working Families Party, Aplts. v. Com.

Opinion

[J-61-2018] [MO: Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

WORKING FAMILIES PARTY, : No. 34 EAP 2017 CHRISTOPHER M. RABB, DOUGLAS B. : BUCHHOLZ, AND KENNETH G. BEISER, : Appeal from the order of : Commonwealth Court entered on Appellants : September 18, 2017 at No. 435 MD : 2016. : v. : ARGUED: September 25, 2018 : : COMMONWEALTH OF PENNSYLVANIA, : ROBERT TORRES, IN HIS OFFICIAL : CAPACITY AS ACTING SECRETARY OF : THE COMMONWEALTH OF : PENNSYLVANIA AND JONATHAN M. : MARKS, IN HIS OFFICIAL CAPACITY AS : COMMISSIONER, BUREAU OF : COMMISSIONS, ELECTIONS AND : LEGISLATION, DEPARTMENT OF : STATE, COMMONWEALTH OF : PENNSYLVANIA, : : Appellees :

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: June 5, 2019

Any jurist who proposes to upset established practices and norms in an area as

dependent on stability as election procedure does so only with considerable reluctance.

As well, this Court imposes a substantial burden upon anyone who seeks to establish that

a duly-enacted law is unconstitutional, in view of our presumption that the General

Assembly’s enactments are constitutional. See Maj. Op. at 14-15 (quoting DePaul v.

Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009)). This thumb on the scales notwithstanding, I nonetheless would hold that the anti-fusion provisions of the Election

Code1 substantially burden fundamental constitutional rights in ways that are not

outweighed by the government interests at stake. The circumstances presented by this

case illustrate to my satisfaction that the operation of the anti-fusion provisions before us

infringes upon Pennsylvania voters’ and candidates’ right to free and equal elections

under the Pennsylvania Constitution. See PA. CONST. art. I, § 5 (“Elections shall be free

and equal; and no power, civil or military, shall at any time interfere to prevent the free

exercise of the right of suffrage.”). Accordingly, I respectfully dissent.2

As the Majority’s account ably relates, at issue in this case is the Working Families

Party’s (“WFP”) desire to nominate Christopher M. Rabb for a seat in the Pennsylvania

House of Representatives, an office for which Rabb obtained the nomination of the

Democratic Party by prevailing in that party’s primary election.3 After the primary election

was completed, Rabb filed papers with sufficient signatures to secure the WFP

nomination,4 but Rabb crossed out and disclaimed the statutorily-prescribed affirmation

1 Act of June 3, 1937, P.L. 1333, codified as amended at 25 P.S. §§ 2600-3591; see 25 P.S. § 2911(e)(5) (precluding the filing of political body nomination papers where the candidate’s name has “been presented as a candidate by nomination petitions for any public office to be voted for at the ensuing primary election” or he has “been nominated by any other nomination papers filed for any such office”), deemed unconstitutional as applied to a different matter by Constitution Party of Pa. v. Cortes, 824 F.3d 386 (3d Cir. 2016); see also Maj. Op. at 3-4 nn. 2, 3 (reviewing the suite of additional Election Code provisions that pertain to this restriction). 2 I concur in the Majority’s analysis only inasmuch as I agree that Appellants timely filed their appeal in this matter. See Maj. Op. at 13-14. 3 Hereinafter, I refer to WFP, Rabb, and the voter-Appellants collectively as “WFP.” Similarly, I refer to the various Appellee Commonwealth parties as “the Commonwealth.” 4 As a “political body” rather than a “political party” under Pennsylvania law, WFP was denied access to the primary process and was required to seek nomination by petition. See generally 25 P.S. § 2831; see also Maj. Op. at 5.

[J-61-2018] [MO: Mundy, J.] - 2 that he was not, at the time of submission, the nominee of any other political party or

body. See Maj. Op. at 2.

Although Pennsylvania law precludes cross-nominations (i.e., “ballot fusion”) by

this method, this Court’s decision in Appeal of Magazzu, 49 A.2d 411 (Pa. 1946), provided

a narrow exception to the statutory rule. In Magazzu, this Court held that cross-

nomination may be achieved by primary write-in vote. Accordingly, a candidate seeking

the nominations of two major parties, i.e., those admitted to the primary process because

they achieved a prescribed quantum of support in a prior election, may seek the

nomination of one such party by winning its primary while pursuing the nomination of

another major party by winning that party’s primary through the write-in votes of that

party’s registered electors. A candidate seeking the nominations of a major party and a

political body also may avail himself of this option by submitting a qualifying petition for

the political body in advance of the primary and securing a write-in victory in the major

party’s primary.

WFP and Rabb, as well as two qualified electors, sought declaratory relief on the

basis that the anti-fusion provisions, as qualified by our ruling in Magazzu, violated the

Free and Equal Elections Clause, the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution,5 and Article I, Sections 7 and 20 of the

5 “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.

[J-61-2018] [MO: Mundy, J.] - 3 Pennsylvania Constitution, which protect, respectively, the freedoms of expression and

association.6

I. Political Parties and Ballot Fusion in the American Electoral System

A. Political Parties Generally

There is widespread agreement that political parties serve an important and

salutary role in American democracy. The United States Supreme Court has spoken

forcefully in defense of the values promoted by political associations in the form of parties,

and has noted that seeking victory is one, but not necessarily the only, reason that a

political party may venture a nominee in a given election:

It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. Freedom 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.

Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989) (internal

quotation marks and citations omitted). In Anderson v. Celebrezze, 460 U.S. 780 (1983),

the Court explained:

By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, [ballot] restrictions [that disadvantage minor parties] threaten to reduce diversity and competition in the marketplace of ideas. Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time

6 Article I, Section 7 provides, in relevant part, “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” PA. CONST. art. I, § 7. Section 20 provides, “The citizens have a right in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes, by petition, address or remonstrance.” PA. CONST. art. I, § 20.

[J-61-2018] [MO: Mundy, J.] - 4 made their way into the political mainstream. Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 186 (1979). In short, the primary values protected by the First Amendment—“a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)—are served when election campaigns are not monopolized by the existing political parties.

Anderson, 460 U.S. at 794 (citations modified); see Williams v. Rhodes, 393 U.S. 23, 31

(1968) (noting that “[t]he right to form a party for the advancement of political goals means

little if a party can be kept off the election ballot and thus denied an equal opportunity to

win votes”); McConnell v. Fed. Election Comm’n, 540 U.S. 93, 352 (2003) (Rehnquist, J.,

dissenting), overruled by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)

(“[S]ome national parties exist primarily for the purpose of expressing ideas and

generating debate.”).7

7 Professor Dimitri Evseev trenchantly has observed: A jurisprudence that takes the expressive aspects of voting into account would be quite different from the Supreme Court’s current approach. Today, the Justices may believe that third parties contribute little more than confusion to elections. This view makes sense if the only purpose of elections is the selection of office-holders, since third-party candidates are usually not electable. However, if voting is reconceptualized as a broader political statement of support for or rejection of a particular candidate or agenda, then the ballot becomes inseparable from the larger arena of democratic politics, in which dissenting minority voices are integral to healthy debate. When the two major parties agree on a particular issue, public discourse about it may be virtually eliminated in the absence of a strong third voice. Even when the two parties disagree, they may collude to avoid topics that each of them finds politically damaging. Third parties thus liven public debate by broadening the range of topics and positions to which the electorate is exposed. See Dimitri Evseev, A Second Look at Third Parties: Correcting the Supreme Court’s Understanding of Elections, 85 B.U. L. REV. 1277, 1308 (Dec. 2005) (footnotes omitted).

[J-61-2018] [MO: Mundy, J.] - 5 In Minnesota Fifth Congressional District Independent-Republican Party v. State,

295 N.W.2d 650 (Minn. 1980), the Minnesota Supreme Court described the important

function that political parties play in facilitating effective political association of the sort the

Framers sought to enable and protect:

The Constitution protects political association as well as individual political expression. One of those precious associational freedoms is the right of “like-minded persons to pool their resources in furtherance of common political goals.” Buckley v. Valeo, 424 U.S. 1, 22 (1976). Political parties enjoy a constitutionally protected right of association, and any interference with that right is an interference with the rights of the party’s adherents. Cousins v. Wigoda, 419 U.S. 477, 487 (1975). Any restriction on either of these dual rights[,] “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively,” Williams, 393 U.S. at 30[,] must be subject to strict judicial scrutiny.

Minnesota Fifth, 295 N.W.2d at 652 (citations modified).

In dissent in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), Justice

Stevens defended the associational benefits of political parties and their ability to appear

on the ballot:

[A] party’s choice of candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support. Political parties “exist to advance their members’ shared political beliefs,” and “in the context of particular elections, candidates are necessary to make the party’s message known and effective, and vice versa.” Col. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 604, 629 (1996) (Kennedy, J., dissenting). See also Anderson, 460 U.S. at 821 (Rehnquist, J., dissenting) (“Political parties have, or at least hope to have, a continuing existence, representing particular philosophies. Each party has an interest in finding the best candidate to advance its philosophy in each election”).

Timmons, 520 U.S. at 372 (Stevens, J., dissenting) (citations modified; footnote omitted).

And in California Democratic Party v. Jones, 530 U.S. 567 (2000), the Court amplified

Justice Stevens’ observations regarding standard bearers in the strongest of terms: “[i]t

is the nominee who becomes the party’s ambassador to the general electorate in winning

[J-61-2018] [MO: Mundy, J.] - 6 it over to the party’s views.” Id. at 575; see In re Jones, 476 A.2d 1287, 1299 (Pa. 1984)

(citing Anderson, supra; Lubin v. Panish, 415 U.S. 709 (1974)) (noting that parties are

“desirous of selecting a standard bearer who shared their political views and who could

best articulate their needs and aspirations”).

Moreover, in Williams, the High Court made clear that not only the party system

itself warranted protecting, but new and minor parties, as well, are entitled to protections

from the duopolistic hegemony of two dominant parties. In finding that the restrictions

under review in that case not only favored a two-party system, but in fact favored

Democrats and Republicans specifically, the Court underscored that “[n]ew 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.”

Williams, 393 U.S. at 32.

There is no better evidence for the fundamental value the Court recognizes in

association and expression through political parties than in its persistent application of

elevated scrutiny to direct incursions upon those rights. Thus, in Eu, and Williams, among

others, the Court applied strict scrutiny to infringements upon the associative rights

attendant to political parties and their constituents. Accordingly, the Court in Eu and

Williams demanded that such infringements serve a compelling governmental interest.

B. Ballot Fusion8

Ballot fusion—the practice of a candidate running in an election as the nominee of

more than one political party—was the norm rather than the exception in American

8 The following discussion relies upon my sampling of the voluminous scholarship on this and related issues. Except where otherwise indicated, my account is drawn

[J-61-2018] [MO: Mundy, J.] - 7 electoral politics until early in the twentieth century. When fusion was the norm, “third”

parties—i.e., parties other than the Democratic and Republican parties 9—were more

numerous, more widespread, and more influential than their modern counterparts.

Indeed, from Reconstruction through World War II, third parties, by banding together with

the larger Democratic and Republican parties, wielded considerable, sometimes decisive,

power in elections at the state and even national levels. At various pinnacles in their

history, these alliances influenced major parties to adopt policy positions favorable to

minor parties in order to ensure the latters’ support, and even induced the former to

withdraw candidates for certain races in favor of third-party candidates so as to secure

third-party support for major party candidates in other races.

Concerns about fusion and the proliferation of minor parties, as well as various

forms of fraud,10 led first to the widespread replacement of the party ballot system—in

principally from the following sources: Howard A. Scarrow, Duverger’s Law, Fusion, and the Decline of American “Third” Parties, THE WESTERN POLITICAL QUARTERLY vol. 39, no. 4, 634 (Dec. 1986); and Peter H. Argersinger, “A Place on the Ballot”: Fusion Politics and Antifusion Laws, THE AMERICAN HISTORICAL REVIEW vol. 85, no. 2, 287 (April 1980). I have consulted various additional sources, which echo and add to Scarrow’s and Argersinger’s accounts. See Dimitri Evseev, supra n.7; Elissa Berger, Note, A Party that Won’t Spoil: Minor Parties, State Constitutions and Fusion Voting, 70 BROOK. L. REV. 1381 (2005); Daniel R. Ortiz, Duopoly Versus Autonomy: How the Two-Party System Harms the Major Parties, 100 COLUM. L. REV. 753 (April 2000); James Gray Pope, Fusion, Timmons v. Twin Cities Area New Party, and the Future of Third Parties in the United States, 50 RUTGERS L. REV. 473 (Winter 1998); Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (1997). 9 Although Pennsylvania law distinguishes primary parties from petitioning parties as “political parties” and “political bodies,” respectively, for purposes of discussion I rely principally upon the terminology of “major parties” and “minor parties,” occasionally referring to the latter as “third parties.” 10 See Ortiz, supra n.8, at 767-769.

[J-61-2018] [MO: Mundy, J.] - 8 which partisan electioneers provided completed ballots to voters—in favor of a

government-funded, standardized “Australian ballot.” In granting control to the governing

body of the fashion in which candidates for election were presented to the electorate, the

Australian Ballot facilitated the introduction of increasingly restrictive ballot access

provisions, both salutary and repressive, including requiring candidates to demonstrate

sufficient pre-election support through petition requirements and fostering broad adoption

of laws designed to eliminate then-common ballot-fusion practices in favor of channeling

candidates into seeking the nomination of one of the dominant parties.11

After the adoption of the Australian ballot but before ballot fusion was broadly

eradicated, cross-nominations were reflected on the ballot in either of two general ways.

Some jurisdictions adopted what some call an “office bloc” approach to the general

election ballot, listing each candidate for a given office only once, with all party affiliations

appearing adjacent to the candidate’s name. Thus, a candidate nominated by more than

one party would appear only once, with each of the nominating parties appearing next to

his name. This is the approach that prevails now in Pennsylvania for cross-nominated

candidates. See 25 P.S. § 2963(d).

Other jurisdictions employed a variation on the “party column” method. On a party

column ballot, a cross-nominated candidate appears on as many separate lines as he

has party nominations, enabling voters not only to vote for a candidate, but, in doing so,

to signal under which party’s aegis the voter cast the vote. In this fashion, the voter can

11 The Australian Ballot also provided a means to prevent chicanery endemic to the party ballot system, including protecting the privacy of the ballot, and preventing political parties from distributing ballots that looked like the slate of another party but actually listed the candidates of the distributing party. See Berger, supra n.8, at 1388.

[J-61-2018] [MO: Mundy, J.] - 9 indicate not only which candidate he favors, but also which party he chooses to endorse

with his vote. New York, one of a handful of states that long have permitted ballot fusion

in one form or another, employs the party column method.12

While the accounts of the intent underlying anti-fusion statutes are manifold, and

while these accounts differ substantially,13 research regarding the results that followed

the introduction of anti-fusion legislation has been more consistent, supporting the

narrative that anti-fusion regulations were mechanisms by which dominant parties

12 WFP describes office bloc ballots and party column ballots, respectively, as “aggregated” and “disaggregated” ballots, a more descriptive choice that I adopt for the remainder of this Opinion. 13 One term that recurs frequently in multiple guises, one which is cited by the Commonwealth in this case, is “party-raiding.” Definitions of this term vary. In Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986), as well as in the Commonwealth Court’s decision in this case, the Court identified party-raiding as occurring when “voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.” Id. at 219. In other cases, courts have credited government interests in imposing ballot restrictions out of concern that “splintered parties and unrestrained factionalism may do significant damage to the fabric of government.” Storer v. Brown, 415 U.S. 724, 736 (1974). In Bullock, supra, the Court recognized a legitimate interest in “regulating the number of candidates on the ballot,” “prevent[ing] the clogging of its election machinery, avoid[ing] voter confusion,” and protecting “the integrity of [the state’s] political processes from frivolous or fraudulent candidacies.” Id. at 145; accord In re Street, 451 A.2d 427, 430 (Pa. 1982) (suggesting that the true intent of the anti-fusion provisions was “to prevent the election ballot from being cluttered by candidates who are seeking to multiply the number of times their name appears on the ballot under various inviting labels” by limiting each person to appearing as the nominee of only one party). However, the Supreme Court astutely has observed that 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.” Eu, 489 U.S. at 228 (quoting Tashjian, 479 U.S. at 221; Anderson, 460 U.S. at 798). On at least one occasion, a Pennsylvania court has taken a more cynical view, albeit one consistent with the history of such provisions: “Our review of the history of ballot access for minor parties in Pennsylvania reveals what we view as the legislature’s intent to make ballot access by these parties difficult, under the guise of maintaining an ‘uncluttered’ ballot.” In re Nomination Papers of Rogers, 908 A.2d 948, 955 (Pa. Cmwlth. 2006).

[J-61-2018] [MO: Mundy, J.] - 10 consolidated their power at the expense of minor parties. Professor Argersinger has

conducted statistical analyses supporting the conclusion that, across multiple elections in

multiple jurisdictions, where candidates were allowed to run as the nominee of more than

one party and appeared on separate ballot lines for each such nomination (disaggregated

ballot), they received more votes than if they appeared as the nominee of more than one

party but their name appeared on only one line of the ballot with all nominating parties

listed beside them (aggregated ballot), and that such candidates received fewer votes still

if they were denied cross-nomination entirely, appearing as the nominee of only one of

the dominant parties. Professor Argersinger further concluded that voter turnout

diminished on the same continuum. See Argersinger, supra n.8, at 293-95; see also

Berger, supra n.8, at 1388-90. In any event, Pennsylvania reflects the norm rather than

the exception in substantially barring cross-nomination. Fewer than ten states allow ballot

fusion, and only New York widely is recognized for having a political environment where

ballot fusion plays an important role in electoral politics. See generally Berger, supra n.8,

at 1390-92.14

II. Robert and Roberta Seek Cross-Nominations

After Magazzu, Pennsylvania’s status quo is somewhat unusual, perhaps unique,

in recognizing a significant exception to its textually categorical ban on cross-

nominations.15 This anomaly substantially informs WFP’s arguments as to why the

14 New York’s system, in particular, has received a great deal of scholarly attention. See, e.g., Berger, supra n.8, at 1391-92. 15 The persistence of the Magazzu exception cannot be written off as ephemeral or as mere oversight. Magazzu has been on the books for over seventy years, and on WFP’s undisputed account, in just the last decade, over a hundred candidates statewide have successfully utilized the exception to appear on a general election ballot as the

[J-61-2018] [MO: Mundy, J.] - 11 collective effect of Pennsylvania’s anti-fusion regulations offends the Pennsylvania and

United States Constitutions. It is perhaps easiest to illustrate WFP’s concerns with a

hypothetical example.

Robert, a self-identified “centrist,” seeks the nominations of both the Democratic

and Republican parties in his 2022 campaign for Governor of Pennsylvania. A lifelong

Democrat by registration, he pursues that party’s nomination by taking the steps

necessary to secure a place on that party’s primary ballot. To do so, he must collect two

thousand signatures in the three-week period between the thirteenth Tuesday before the

primary election and the tenth Tuesday before the primary.16 A longtime Democratic

politician, he collects the signatures with ease. Meanwhile, Robert vigorously makes his

case for a write-in vote to Republican voters. With a crowded Republican field from which

no frontrunner has emerged as the primary approaches, Robert’s effort gains traction.

Roberta, also a long-time registered Democrat but of a more liberal bent, also

enjoys enough party support to believe that she would defeat Robert for the party’s

nomination in the same race were she to appear on the Democratic Party’s primary ballot.

However, by Roberta’s calculations, a candidate who runs as a more liberally-inclined

Democrat in the general election will face an uphill electoral battle against the Republican

nominee, especially because a third party, True Blue, recently has emerged to advocate

nominee of both the Democratic and Republican parties. See Brief for WFP at 24 (asserting that, according to the Department of State’s database, at least 101 candidates have achieved major-party cross-nomination). Thus, one can only conclude that the General Assembly is satisfied with the status quo. Cf. Tincher v. Omega Flex, Inc., 104 A.3d 328, 353 (Pa. 2014) (“[W]e assume that the General Assembly is aware of the rule, which, if unchanged by legislation, presumably reflects continued legislative policy.”). 16 For these requirements, see 25 P.S. §§ 2868, 2872.1, 2873.

[J-61-2018] [MO: Mundy, J.] - 12 a more aggressive approach to certain policy positions associated generally with the

Democratic party and has gathered enough support for its nominees to have acted as

spoilers in recent races by siphoning off Democratic votes. Thus, Roberta also seeks the

support of this upstart party, which remains a political body under state law subject to the

more burdensome signature requirements that apply to such a body. A substantial

majority of the True Blue rank and file, for their part, believe that Roberta best embodies

the party’s collective values, and embrace her desire to seek their nomination in tandem

with that of the Democratic Party.

If Roberta sought only the True Blue nomination, she would have from the tenth

Wednesday before the primary until the second Friday after the primary (or just shy of

twelve weeks) to collect a number of signatures equal to two percent of the largest vote

cast for any elected candidate in the state at the last state-wide election17 in order to

secure ballot placement statewide on True Blue’s behalf, bring all necessary papers

together, and submit them to the Secretary of the Commonwealth. But because she also

seeks the Democratic Party nomination by write-in vote (her only option if she wants the

True Blue nomination), the time period that she has to collect signatures in furtherance of

True Blue’s nomination is foreshortened by eleven days, because if she is successful in

her write-in campaign for the Democratic nomination on primary day, she forfeits the right

to submit True Blue nomination materials thereafter. Thus, she must collect, organize,

and validate her petitions in the ten weeks preceding the primary, to be held the third

17 For reference, Governor Tom Wolf received 2,895,652 votes in the 2018 election, two percent of which would require 57,914 signatures. See Department of State, https://www.electionreturns.pa.gov/General/SummaryResults?ElectionID=63&ElectionT ype=G&IsActive=0.

[J-61-2018] [MO: Mundy, J.] - 13 Tuesday in May, effectively forfeiting nearly two post-primary weeks that she otherwise

would have to secure the tens of thousands of signatures in support of her True Blue

nomination to ensure a place on the general ballot as that party’s nominee.18 Moreover,

at least thirty days before the primary, she must renounce her Democratic voter

registration, which will do her no favors in her write-in campaign for that party’s

nomination, especially against a formidable candidate like Robert.

Knowing all of this in advance, Roberta faces a wrenching choice. If she pursues

the True Blue nomination, not only does she risk failing to secure the Democratic

nomination by write-in, where she might have prevailed had she appeared on the ballot,

but she also risks failing in her effort to secure the requisite signatures in a somewhat

shorter period of time than the General Assembly has seen fit to provide political-body

candidates. Moreover, if she succeeds in her write-in campaign, but fails to collect

sufficient signatures in advance of the primary, she simultaneously will forfeit her eligibility

to secure the nomination of the True Blue Party, deny the True Blue Party the ability to

nominate its first-choice candidate, and leave True Blue with less than two weeks to

collect signatures for a second-choice nominee, very likely resulting in True Blue fielding

no nominee at all. And even if True Blue somehow manages to nominate a second-

choice candidate, those among its members who prefer Roberta in principle will be forced

to choose between supporting their preferred candidate or their preferred party in the

general election.

Although Robert and Roberta each seek to utilize the Magazzu exception, and

theoretically may do so, the decisions and logistical challenges that Roberta faces

18 For these requirements, see 25 P.S. §§ 2911, 2913.

[J-61-2018] [MO: Mundy, J.] - 14 manifestly are more onerous than those Robert confronts. The differences arise directly

from the statutory distinctions between the nomination requirements that apply to major

parties and those that apply to minor parties, which work in concert with Magazzu to

impose a substantial practical disadvantage upon candidates seeking minor party-major

party cross-nominations.

Against this backdrop, we confront WFP’s several constitutional challenges to

Pennsylvania’s anti-fusion regulations. These challenges invoke the Free and Equal

Elections Clause of the Pennsylvania Constitution, the Equal Protection Clause of

Fourteenth Amendment to the United States Constitution, and Pennsylvania’s protection

of free political speech and assembly under Article I, Sections 7 and 20 of the

Pennsylvania Constitution.

III. The Pennsylvania Constitution’s Free and Equal Elections Clause

This Court recently and rigorously examined the import and effect of the

Pennsylvania Constitution’s Free and Equal Election Clause in League of Women Voters

v. Commonwealth, explaining:

The broad text of the first clause of [the Free and Equal Election Clause] mandates clearly and unambiguously, and in the broadest possible terms, that all elections conducted in this Commonwealth must be “free and equal.” In accordance with the plain and expansive sweep of the words “free and equal,” we view them as indicative of the framers’ intent that all aspects of the electoral process, to the greatest degree possible, be kept open and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government. Thus, Article I, Section 5 guarantees our citizens an equal right, on par with every other citizen, to elect their representatives. Stated another way, the actual and plain language of Section 5 mandates that all voters have an equal opportunity to translate their votes into representation. This interpretation is consistent with both the historical reasons for the inclusion of this provision in our

[J-61-2018] [MO: Mundy, J.] - 15 Commonwealth’s Constitution and the meaning we have ascribed to it through our case law.

League of Women Voters v. Commonwealth, 178 A.3d 737, 804 (Pa. 2018) (emphasis

added) (hereinafter “LWV”).

We noted in that case that our Free and Equal Elections Clause has no federal

counterpart, and that it appears in our Declaration of Rights, “which spells out the social

contract between government and the people and which is of such ‘general, great and

essential’ quality as to be ensconced as ‘inviolate.’” Id. at 803 (citing PA. CONST. art I,

Preamble, §§ 2, 2519). Thus, although our Constitution confers upon the General

Assembly the power to enact laws governing elections, such enactments “may be

invalidated by our Court ‘in a case of plain, palpable and clear abuse of the power which

actually infringes the rights of the electors.’” Id. at 809 (quoting Patterson v. Barlow, 60

Pa. 54, 75 (1869)). Accordingly, “any legislative scheme which has the effect of

impermissibly diluting the potency of an individual’s vote for candidates for elective office

relative to that of other voters” runs afoul of the Free and Equal Elections Clause. Id.

(citing City Council of the City of Bethlehem v. Marcincin, 515 A.2d 1320, 1323-24

(Pa. 1986)).

Over a century ago, in Winston v. Moore, 91 A. 520 (Pa. 1914), this Court provided

a similarly expansive account of the Clause:

19 “All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.” PA. CONST. art. I, § 2. “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” PA. CONST. art. I, § 25;

[J-61-2018] [MO: Mundy, J.] - 16 [E]lections are free and equal within the meaning of the Constitution when they are public and open to all qualified electors alike; when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, or make it so difficult as to amount to a denial; and when no constitutional right of the qualified elector is subverted or denied him.

Id. at 523. We took care in Winston to underscore the importance of preserving legislative

prerogatives in the regulation of elections, and added that Pennsylvania courts “have

never undertaken to impale legislative power on points of sharp distinction in the

enactment of laws intended to safeguard the ballot and to regulate the holding of

elections.” Id. at 522. Ultimately, we upheld the statute at issue in Winston because it

simply limited access to the general ballot to the two candidates who received the greatest

number of primary votes. This Court observed that “the inconveniences if any bear upon

all in the same way under similar circumstances and are made necessary by limiting the

number of names to be printed upon the official ballot.” Id. at 523.

In LWV, we gleaned from Winston that the Free and Equal Elections Clause

requires an “equal, nondiscriminatory electoral process.” LWV, 178 A.3d at 810. “[F]or

our form of government to operate as intended, each and every Pennsylvania voter must

have the same free and equal opportunity to select his or her representatives.” Id. at 814

(emphasis in original). Adopting a broad interpretation of the Free and Equal Elections

Clause “guards against the risk of unfairly rendering votes nugatory, artificially

entrenching representative power, and discouraging voters from participating in the

electoral process because they have come to believe that the power of their individual

vote has been diminished to the point that it ‘does not count.’” Id.

In finding that WFP’s claims under the Free and Equal Elections Clause do not

warrant relief, the Majority relies upon LWV’s putatively narrow conclusion that “the

[J-61-2018] [MO: Mundy, J.] - 17 overarching objective of this provision of our constitution is to prevent dilution of an

individual’s vote by mandating that the power of his or her vote in the selection of

representatives be equalized to the greatest degree possible with all other Pennsylvania

citizens.” Maj. Op. at 19 (quoting LWV, 178 A.3d at 817). The Majority notes that, in their

theoretical access to the write-in cross-nomination alternative, voters and candidates who

seek major party-minor party cross-nomination have “‘the same right as every other

voter,’ and thus the foundational principle underlying [the Free and Equal Elections

Clause] is not offended.” Maj. Op. at 20 (quoting Winston, 91 A. at 523).

The Majority also cites this Court’s decision in Shankey v. Staisey, 257 A.2d 897

(Pa. 1969), for roughly the same proposition. See Maj. Op. at 19. In Shankey, a minor

party that qualified for the primary ballot submitted no candidates for inclusion on the

primary ballot, but several candidates affiliated with the party won their respective

primaries by write-in vote. Election officials refused to certify their elections because their

write-in vote totals did not reach the number of signatures that a political body seeking

ballot access by petition was required to collect, as required by statute. The Shankey

Court found no constitutional violation because the statute merely provided that anyone

seeking inclusion on the general ballot, whether through primary election or by nomination

petition, was obligated to demonstrate the support of the same number of electors.

Citing the facially non-discriminatory nature of the anti-fusion regulations, and the

putatively equal availability of the Magazzu exception to parties seeking major-major or

major-minor cross-nomination, the Majority concludes that, as in Winston and Shankey,

no asymmetrical burdens are imposed. The Majority further holds that, whether or not a

candidate seeking cross-nomination in the fashion allowed by Magazzu succeeds, so

[J-61-2018] [MO: Mundy, J.] - 18 long as that candidate appears on the ballot as the nominee of one party, a supporting

voter of either of the parties that sought cross-nomination may endorse, support, and vote

for that candidate, and that vote is counted once, like any other voter’s. Consequently,

the Majority holds, the Free and Equal Elections Clause, as elucidated in Winston,

Shankey, and LWV, is satisfied.

These cases are distinguishable. In Winston and Shankey, the challenged

burdens did not create anything resembling the unequal logistical burdens at issue in the

instant case. In the former, ballot access was merely limited to the top two vote-getters,

whatever their affiliation, with each candidate free to campaign in precisely the same

fashion for precisely the same nomination. And in Shankey, the law merely required a

threshold showing of support to appear on the general ballot, whether that support was

tallied in a primary or by nomination petition. Conversely, in Anderson, the Court rejected

the argument that facially equal treatment of major and minor party candidates suffices

where the practical burdens were greater on minor parties than on major parties.

460 U.S. at 799-801.

Furthermore, in relying upon LWV, the Majority plucks LWV’s reference to vote

dilution, as such, from this Court’s application of the Court’s ratio decidendi to the specific

gerrymandering challenge at issue in that case, a subject that necessary implicates vote

dilution in the common sense in which that terminology typically is used. But by the text

of the Free and Equal Elections Clause itself, as well as LWV’s account of the interests it

protects, vote dilution is only one of the ills the Clause is designed to cure, one peculiar

[J-61-2018] [MO: Mundy, J.] - 19 to gerrymandering, at least in the modern era where one-person-one-vote is settled law.20

The LWV language relied upon by the Majority reflected a case-specific application of the

Free and Equal Elections Clause, but we offered that narrow formulation only after

describing the Clause in bolder, more encompassing terms: “[T]he Clause should be

given the broadest interpretation, one which governs all aspects of the electoral process,

and which provides the people of this Commonwealth an equally effective power to select

the representative of his or her choice, and bars the dilution of the people’s power to do

so.” LWV, 178 A.3d at 814 (emphasis added). Suggesting that this principle applies only

to vote dilution in the gerrymandering context when our general characterization cited the

protection of “all aspects of the electoral process” and referred to the dilution of the

“power” to “select the representative of [the voter’s] choice” can hardly be characterized

as the “broadest interpretation” of the Clause, nor can it be reconciled with the Clause’s

text or LWV’s express rationale.

Because political parties play a defining role in our polity, it follows that the health

of our state’s elections depends in part upon the ability of new political parties to emerge,

be heard, and gather members. See Williams, 393 U.S. at 31-32. Thus, the formation of

parties and their access to the ballot must be understood to be among the “aspects of the

electoral process” to which the Free and Equal Election Clause’s protections apply, and

part and parcel of the “power” to select one’s preferred candidate. Thus, I find it wholly

unsatisfying to rely upon one decontextualized allusion to vote “dilution” in derogation of

20 Before the United States Supreme Court enshrined the one-person-one-vote principle, vote dilution also could occur in districts encompassing more voters than other districts, resulting in the literal “dilution” of the votes of those in more populous districts relative to their counterparts in less populous districts. See generally Reynolds v. Sims, 377 U.S. 533 (1964).

[J-61-2018] [MO: Mundy, J.] - 20 the other concerns explicitly embraced by this Court in LWV—and for that matter in

Winston.

Notably, Winston itself employed broader terms than the Majority allows, and it is

Winston’s observation that elections are free and equal, in part, when no (ostensibly

other) “constitutional right of the qualified elector is subverted or denied him,” that

animates the remainder of my discussion. See Winston, 91 A. at 523. In my view,

Winston and LWV establish that the Free and Equal Elections Clause incorporates and

protects other constitutional values naturally implicated by election regulations. Stated

otherwise, an electoral system that denies its participants’ constitutional rights cannot be

called “free and equal.” With these principles in mind, I turn to WFP’s invocation of the

federal Equal Protection Clause.

IV. Equal Protection Under the Fourteenth Amendment to the United States Constitution

Effectively conceding the lack of a facially discriminatory aspect of the anti-fusion

regulations between major parties and minor parties, WFP instead argues that the Act as

applied to WFP in this case violates its right to equal protection under the federal

Fourteenth Amendment. WFP notes that, in Constitution Party of Pennsylvania v. Cortes,

824 F.3d 386 (3d Cir. 2016), the United States Court of Appeals for the Third Circuit21

affirmed the District Court’s determination that a Pennsylvania statute concerning the

number of signatures required of a political body to appear on a general ballot was

21 In view of the Supremacy Clause, U.S. CONST. art VI, cl. 2, we are bound on matters of federal law only by decisions of the Supreme Court of the United States. Nonetheless, we generally treat the decisions of the United States Court of Appeals for the Third Circuit as persuasive authority when it has spoken to the federal question presented. See generally Stone Crushed Partnership v. Kassab Archbold Jackson & O’Brien, 908 A.2d 875, 883 n.10 (Pa. 2006).

[J-61-2018] [MO: Mundy, J.] - 21 unconstitutional as applied to such political bodies, despite the fact that the statute was

facially non-discriminatory and constitutional in most of its applications. The court

elaborated as follows:

“The distinction between facial and as-applied challenges . . . goes to the breadth of the remedy employed by the Court.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). That is, “[a]n ‘as applied’ challenge is a claim that the operation of a statute is unconstitutional in a particular case while a facial challenge indicates that the statute may rarely or never be constitutionally applied.” 16 C.J.S. CONSTITUTIONAL LAW § 243; see also United States v. Huet, 665 F.3d 588, 600-01 (3d Cir. 2012) (same); United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.) (same).

Constitution Party, 824 F.3d at 394 (citations modified).

In support of its as-applied Equal Protection challenge, WFP relies principally upon

the Third Circuit’s en banc decision in Reform Party of Allegheny County v. Allegheny

County Department of Elections, 174 F.3d 305 (3d Cir. 1999). Reform Party concerned

a facially discriminatory Pennsylvania law that allowed major parties to cross-nominate

candidates for certain local offices while precluding minor parties from doing the same.

The District Court found that the statute violated the Equal Protection Clause and granted

summary judgment in favor of the minor party that challenged the statute. The Court of

Appeals heard the case22 en banc in the immediate wake of the Supreme Court’s decision

in Timmons, supra, in which the Court upheld Minnesota’s anti-fusion statute—which was

not unlike Pennsylvania’s—against a First Amendment challenge.

The Reform Party court quickly rejected Timmons as dispositive, because, in

addressing only the First Amendment, the Timmons Court neither offered guidance

regarding the Equal Protection Clause nor vitiated prior Supreme Court case law applying

22 This account skips procedural steps that do not inform the present analysis.

[J-61-2018] [MO: Mundy, J.] - 22 that clause to election regulations. In effect, all the Reform Party court took from Timmons

was the principle that, in examining election laws for constitutional violations, courts must

first assess the magnitude of the burden in question, and apply “less exacting review” to

such burdens when they are not “severe.” Reform Party, 174 F.3d at 311 (quoting

Timmons, 520 U.S. at 370 (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)));

id. at 314 (assuming that the same level of scrutiny applies to both associational and

equal protection challenges to the similar electoral regulations).23

The court then underscored that the Timmons Court not only did not overrule the

Court’s earlier decision in Williams, supra, but in fact cited it favorably for the proposition

that a governmental interest in political stability “does not permit a state to completely

insulate the two-party system from minor parties’ or independent candidates’ competition

and influence.” Reform Party, 174 F.3d at 313 (quoting Timmons, 520 U.S. at 367). In

Williams, the Court held that Ohio’s 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,” and thus violated the Equal Protection Clause by placing

“substantially unequal burdens on both the right to vote and the right to associate.” Id.

(quoting Patriot Party of Allegheny Cty. v. Allegheny Cty. Dep’t of Elections, 95 F.3d 253,

268 (3d Cir. 1996)); see Williams, 393 U.S. at 30-34.

23 In Recent Cases, Constitutional Law—Third Circuit Invalidates Statute Burdening Ballot Access on Equal Protection Grounds—Reform Party of Allegheny County v. Allegheny County Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc), 113 HARV. L. REV. 1045 (Feb. 2000), the author notes that, since the Anderson Court limited strict scrutiny review of election regulations to instances where the burdens are “severe,” “the Court has invariably refused to categorize burdens on plaintiffs’ associational rights as severe,” id. at 1045, an observation that, as best I can tell, remains true nineteen years later.

[J-61-2018] [MO: Mundy, J.] - 23 To assess the applicable level of scrutiny, the Reform Party court noted that it was

bound first to assess the impact of the challenged laws on the rights burdened. In Illinois

State Board of Elections, the High Court held that ballot access restrictions burden two

distinct and fundamental rights, i.e., the right of individuals to associate to further political

beliefs and the right of qualified voters to cast effective votes, and consequently must be

subject to some degree of elevated scrutiny. Reform Party, 174 F.3d at 314; see Illinois

State Bd. of Elections, 440 U.S. at 184. Turning to the facially discriminatory ban on

cross-nomination before it, the Court of Appeals noted that banning minor-party cross-

nomination burdened supporters of that party by forcing them to choose one of “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.” Id.

(quoting Patriot Party, 95 F.3d at 269).24 The ban also burdened a minor party, as such,

by “prohibit[ing the] party from nominating its best candidate and from forming a critical

type of consensual political alliance that would help it build support in the community.” Id.

The ban thus served to “entrench the decided organizational advantage that the major

parties hold over new parties struggling for existence.” Id. However, the court noted, in

Timmons, the Supreme Court confronted similar burdens and deemed them insufficiently

severe to trigger strict scrutiny. Consequently, the Timmons Court applied an

“intermediate” level of scrutiny, pursuant to which “the State’s asserted regulatory

24 This tripartite understanding of the choice faced by minor party voters whose chosen candidate is either denied access to the ballot entirely or allowed on the ballot only as the nominee of another party appears in this form and other guises throughout the scholarship on the subject.

[J-61-2018] [MO: Mundy, J.] - 24 interests need only be ‘sufficiently weighty to justify the limitation’ imposed on the [minor

party’s] rights.” Id. (quoting Timmons, 520 U.S. at 364).

The court concluded that it must “weigh, against the burdens imposed, any

plausible justification the State has advanced for imposing unequal burdens on major and

minor parties,” quoting the Supreme Court’s own admonition that, “even in the ordinary

equal protection case calling for the most deferential of standards, we insist on knowing

the relation between the classification adopted and the object to be attained.” Id. at 315

(quoting Romer v. Evans, 517 U.S. 620, 632 (1996)); see Bullock v. Carter, 405 U.S. 134,

145 (1972) (“[E]ven under conventional standards of review, a State cannot achieve its

objectives by totally arbitrary means; the criterion for differing treatment must bear some

relevance to the object of the legislation.”). Eschewing speculation about plausible

justifications as inappropriate to the application of intermediate scrutiny, the court held

that it “must identify and evaluate the precise interests put forward by the State as

justifications for the burden imposed by its rule.” Reform Party, 174 F.3d at 315 (quoting

Anderson, 460 U.S. at 789). “Unlike rational basis review,” the Supreme Court has held,

its standard “does not permit us to supplant the precise interests put forward by the State

with other suppositions.” Edenfield v. Fane, 507 U.S. 761, 768 (1993).25

Election officials proposed four important government interests: preventing “sore

loser” candidacies, preventing individual candidates from monopolizing the ballot,

25 This formulation of intermediate scrutiny contrasts with the most permissive accounts of rational basis review, under which courts are encouraged to consider any reasonable basis for a challenged law, not just those proposed by the law’s proponent. See Pa. Liquor Control Bd. v. Spa Athletic Club, 485 A.2d 732, 735 (Pa. 1984) (imposing the burden of demonstrating the lack of a rational basis upon the challenger, and noting that it is not “incumbent upon the government agency to advance the reasons for the act in defending the classification”).

[J-61-2018] [MO: Mundy, J.] - 25 preventing major party candidates from “bleeding off” independent voters, and

encouraging new candidates to run as independents. The court found that the first

rationale was “too broad and too narrow”: too narrow because the law only prevented a

candidate who lost in a major party primary from later running as a minor-party candidate,

and too broad because it prevented minor-party cross-nomination of candidates who did

not lose a primary. Id. at 317. With respect to the concern for ballot-monopolization, the

court noted that the laws in question only prevented cross-nomination by minor parties,

leaving the door open to “ballot-clogging” by major-party cross-nomination. The third

rationale was unpersuasive because cross-nomination ostensibly would increase a major

party’s share of minor party votes only where the minor party elected to anoint a major

party candidate as its own and its voters preferred the major-party candidate. Regarding

the fourth rationale, the court observed that the same discouragement of independent

candidacies would result, perhaps to a greater extent, when the major parties cross-

nominated a candidate. For want of a weightier state interest, the court held that the

challenged statute, as applied to minor parties, violated the Equal Protection Clause of

the Fourteenth Amendment.

WFP asks us to extend Reform Party’s reasoning to its as-applied Fourteenth

Amendment challenge. WFP invokes the Robert-and-Roberta scenario as demonstrating

the discriminatory effect of the anti-fusion regulations as qualified by this Court’s decision

in Magazzu. WFP cites state records demonstrating dozens of instances in recent years

of candidates achieving major-party cross-nomination through the Magazzu exception,

which records furnish no evidence that even one major party/political body cross-

nomination has been achieved through the same exception. Brief for WFP at 24. Echoing

[J-61-2018] [MO: Mundy, J.] - 26 the Reform Party court’s express concern with the “three unsatisfactory alternatives”

afforded a minor-party voter who is denied recourse to cross-nomination, WFP argues

that “American law long recognized fusion as a simple way to allow supporters of the

program of non-major-parties to vote their values without wasting their votes.” Id. at 43

(internal quotation marks omitted). WFP argues that, in effect and by design, the anti-

fusion regulations “guard the incumbent two-party duopoly from competition.” Id. at 44

(citing In re Nomination Papers of Rogers, 908 A.2d 948, 955 (Pa. Cmwlth. 2006) (noting

“the legislature’s intent to make ballot access by [minor] parties difficult, under the guise

of maintaining an ‘uncluttered’ ballot”)).

The Commonwealth responds principally by characterizing WFP’s argument not

as a specific, as-applied challenge under the Fourteenth Amendment’s Equal Protection

Clause, but rather as a generalized “constitutional” challenge, a self-serving premise that

enables it to treat Timmons as dispositive, despite the fact that Timmons did not address

the Equal Protection Clause at all. See Brief for Commonwealth at 29 (“In Timmons, the

United States Supreme Court determined that an anti-fusion law similar to that of

Pennsylvania met constitutional muster.”).26 Nonetheless, effectively conceding that

intermediate scrutiny applies, the Commonwealth ventures that it has articulated

“important reasons” to support barring ballot fusion. First, the Commonwealth contends

that such restrictions “prevent[] major party candidates from interfering with the ability of

smaller political bodies from being able to choose their own candidates.” Id. Second, the

26 One article has criticized “the Supreme Court’s preference for evaluating ballot access restrictions solely under the First Amendment,” because it “may have obscured the fact that some discriminatory statutes may create burdens that cannot withstand scrutiny under equal protection review.” Recent Cases, supra n.23, at 1049.

[J-61-2018] [MO: Mundy, J.] - 27 law enables election officials “to determine the amount of actual support political bodies

enjoy for the purpose of conferring ‘political party’ status for future elections.” Id.

(emphasis omitted).

The Commonwealth acknowledges that the Supreme Court has found Equal

Protection Clause violations in laws that imposed “significant obstacles for minor party or

independent candidates obtaining ballot access,” citing Williams, Anderson, and

American Party of Texas v. White, 415 U.S. 767 (1974), which concerned omissions of

minor-party candidates from absentee ballots. Brief for Commonwealth at 31. However,

the Commonwealth maintains that, with respect to the challenged law, “any burden is

minimal and certainly much smaller than in those cases where a candidate was denied

access to the ballot altogether,” contrasting that circumstance with the fact that Rabb

appeared on the ballot in the race presently at issue, albeit only as the nominee of the

Democratic Party. Id. Despite the omission from the ballot of any indication of WFP’s

endorsement, the party “could still endorse him, campaign for his election and contribute

money to his campaign.” Id. at 31-32. Similarly, WFP members remained free to support

him and vote for him on Election Day.

The Majority offers only a brief discussion of an argument that strikes me as worthy

of more detailed consideration. In particular, the Majority only briefly summarizes Reform

Party without distinguishing it from this case.27 While the Majority correctly rejects as

27 The most obvious distinction would be that, unlike in this case, the law in Reform Party facially discriminated in expressly denying cross-nomination to minor parties but allowing it for major parties. However, setting aside that this is no answer to the argument that the laws here at issue, as applied, create a similarly discriminatory effect, it also overlooks—as have the parties, the lower court, and the Majority—that the Magazzu exception applies only when a candidate seeks to cross-nominate with a major party and

[J-61-2018] [MO: Mundy, J.] - 28 speculative the Commonwealth’s insistence that the anti-fusion regulations protect

against major-party “raiding” of minor party’s nomination processes, Maj. Op. at 23 n.9, it

accepts with little discussion the weightiness of the Commonwealth’s interest in its ability

to tabulate votes by party for purposes of classifying political organizations in subsequent

elections. In doing so, the Majority tacitly accepts what amounts to the Commonwealth’s

argument that there cannot be a constitutional violation, because, if there were, problems

might emerge in administering the Election Code in its present form. However, our

Constitution owes no solicitude to statutory mandates; statutes follow constitutions, not

the other way around.

The Commonwealth also fails to acknowledge that the statutory solution to the

statutory problems it identifies is circumvented by the Magazzu exception with some

regularity, evidently without severely disrupting the operation of the Election Code. For

example, in certain local races cross-nomination is expressly allowed by means other

than write-in vote. Furthermore, candidates for state and local elections wherein fusion

is barred somewhat regularly attain cross-nomination by write-in under the Magazzu

exception. In either instance, under Pennsylvania’s aggregated system, the cross-

nominated candidates appear on the ballot only once with both parties’ nominations

a minor party, because it only works when the major-party nomination is secured by primary write-in vote. Conversely, a candidate seeking the nomination of more than one minor party has no recourse to Magazzu. Similarly, a party who successfully secures the nomination of one minor party in advance of the primary may be cross-nominated by a major party by write-in primary victory, but may not secure the nomination of a second minor party. This specific scenario is not at issue in this case, but it calls into question the Commonwealth’s and the Majority’s presumption that the anti-fusion regulations combined with the Magazzu exception are not unconstitutional as applied because every candidate seeking fusion has recourse to that exception. That proposition is simply false with respect to parties seeking the nomination of more than one minor party.

[J-61-2018] [MO: Mundy, J.] - 29 adjacent to their names. How does the Commonwealth tabulate votes to determine party

status when cross-nominations occur in those races? For more than seventy post-

Magazzu years the General Assembly evidently has seen no need to address that

scenario by amending the Election Code.

Perhaps those cross-nominations, which invariably involve the two major parties,

cause no practical concern because no serious question is broached regarding the status

of those major parties as such. However, with the party-raiding rationale duly set aside,

the Commonwealth’s entire argument rests upon the availability of the Magazzu

exception to political bodies seeking to cross-nominate a major-party nominee. If,

perchance, a political body ever succeeds in nominating its candidate in advance of the

primary, and that candidate then manages to win a major-party write-in campaign, the

problem with tallying party support cited by the Commonwealth in support of the fusion

ban would come to pass, not to mention the stated ill of enabling a minor party to ride the

coattails of a major party to elevate its status. Thus, not only is the Commonwealth’s

asserted interest one that can be addressed with any number of statutory alternatives, it

also is one that will be undermined in the event that the supposed release valve for the

discriminatory effect of these laws ever opens. Applying intermediate scrutiny, I would

hold that the underinclusiveness of the anti-fusion regulations, combined with available

(and, in fact, superior) statutory alternatives to the stated government interests, are fatal

to those regulations.

[J-61-2018] [MO: Mundy, J.] - 30 V. Conclusion28

At issue here, as set forth above, are fundamental issues pertaining to the effective

power of individual voters’ and political parties’ political and electoral influence, the

fundamental fairness of the system with respect to these rights, and the permissibility of

regulations that plainly impose asymmetrical burdens on voters and parties based upon

nothing more than numerosity and relative popularity—which in part are determined by a

self-reinforcing system in which political power begets more political power to the manifest

exclusion of marginal and minority political coalitions and dissenting perspectives. Our

Supreme Court has found statutes that so entrench power in major parties to the

exclusion of minor parties to violate the Equal Protection Clause. See, e.g., Williams,

393 U.S. at 30-34. For reasons stated above at length, it seems clear to me that WFP’s

claims under the Free and Equal Elections Clause and the Equal Protection Clause

warrant the application at least of intermediate scrutiny for purposes of review, and that

the anti-fusion regulation fails to survive such scrutiny.

While the Commonwealth separately parries each of WFP’s discrete constitutional

challenges to Pennsylvania’s anti-fusion regulations, at the heart of its defense lies a

critical contradiction. The Commonwealth—and the Majority, following the

28 I decline to address at length WFP’s speech and association arguments under Article I, Sections 7 and 20 of the Pennsylvania Constitution. This is not necessarily because I find these arguments unpersuasive. Because I find sufficient grounds for relief under the Pennsylvania Constitution’s Free and Equal Elections Clause and the Equal Protection Clause of the United State Constitution’s Fourteenth Amendment, it is unnecessary to consider whether the Pennsylvania Constitution’s considerable protections for political speech and assembly furnish a separate basis for relief in this case. Indeed, it is not clear to me, at least when it comes to ballot restrictions, that Article I, Sections 7 and 20, ever would furnish relief where the Free and Equal Elections Clause did not.

[J-61-2018] [MO: Mundy, J.] - 31 Commonwealth’s lead—rely upon the dubious premise, which is contradicted by

Supreme Court precedent and undermined by our decision in LWV, that the exclusive

constitutional interest of a political body like WFP and its constituent members lies in the

right to endorse, support, and vote for the candidates of their choosing. Thus, even if

WFP was denied the opportunity to nominate Christopher Rabb, the Commonwealth

asserts that its rights were vindicated by his appearance on the ballot under a major party

mantle, where WFP could support him and its adherents could cast their ballots in his

favor. In this fashion, the Commonwealth insists that the inherent value, and the

protectable right, of a voter’s exercise of the franchise lies solely in its effect on the

ultimate victor, and that the voter has no correlative interest in signaling the party he or

she prefers.

At the same time, however, the Commonwealth maintains that the important

government interest that the anti-fusion regulations protect is the Commonwealth’s

interest in tallying popular support for each party and political body in a given election,

because the data collected dictate each party’s status for purposes of the next election.

With these data, the Commonwealth determines which political groups will have the

advantage of participating in the primary system and appearing on the general ballot

without the burden of collecting a high number of signatures, and which parties will be

relegated to the petition-gathering requirements imposed upon minor parties.

Distilled to its essence, then, the Commonwealth simultaneously asserts that the

tallying of votes by party serves an important government interest, while conversely

arguing that the parties have no countervailing interest in ensuring, precisely by means

of that tabulation, that its members simultaneously may vote for their first-choice

[J-61-2018] [MO: Mundy, J.] - 32 candidate while ensuring that their votes also reflect their desired party affiliation. Put

more simply still, on the Commonwealth’s account, it is important that the Commonwealth

be able to determine which parties the people favor so that ballot access reflects the

ostensible quantum of support, but the very voters that this system is intended to benefit

have no interest in having their votes properly categorized for precisely that purpose.

But the dilemma facing minor-party voters is even worse than it appears. In its

dependence on vote percentages in each election, party classification is determined

based upon an equation in which the numerator is the number of votes tallied for a given

party’s nominee and the denominator is the total number of votes cast in the election. If

forced to choose between voting his first-choice candidate without the desired affiliation

or his second-choice candidate as the nominee of his preferred party, the voter must

choose between voting for whom he believes to be the candidate who best embodies his

political values or casting a ballot in furtherance of the success of the party with which he

identifies. Should the voter choose to vote candidate rather than party, his vote adversely

affects his favored party in its quest to improve its status under Pennsylvania law. When

a party member votes for the nominee of another party, not only does he reduce the

numerator by not furnishing a vote for his chosen party, he also increases the

denominator by casting a vote that effectively supports another party for classification

purposes, with the practical effect of reducing his party’s likelihood of elevating its status

in the next election.

There is no avoiding the degree to which my view, were it to prevail, would disrupt

the status quo. Absent legislative action, the Commonwealth would be compelled to allow

cross-nomination without regard to prior party nomination and to include next to each

[J-61-2018] [MO: Mundy, J.] - 33 candidate’s name all party affiliations, pursuant to its reliance upon the aggregated ballot.

This would, indeed, confound the Commonwealth’s approach to tallying party support for

purpose of determining a given party’s status as a major or minor party in future elections.

However, difficulties with the statutes as they currently are fashioned are immaterial to

the importance of rectifying constitutional errors in service of our paramount duty to

vindicate fundamental rights.

Were my view to prevail, I would hope that the General Assembly would act quickly

to enact reasonable regulations in service of ballot control, the prevention of voter

confusion, and political stability that do not infringe upon constitutional requirements.

New York’s long experience with its version of the disaggregated ballot demonstrates that

there is at least one method of allowing party fusion that has not created untenable voter

confusion and has not palpably tilted the scales in favor of cross-nominated candidates,

except, perhaps, inasmuch as the endorsement of more than one party signals a broader

coalition of supporters. There almost certainly are others. Cf. Kusper v. Pontikes, 414

U.S. 51, 61 (1973) (noting that the availability of less drastic means to a given regulatory

end militate in favor of finding a constitutional violation in less restrained efforts to achieve

the same ends).

The Free and Equal Elections Clause is compromised where the regulatory

approach adopted by the legislature has the well-documented effect of reducing voter

access to alternative viewpoints, limiting voters’ ability to tangibly support their chosen

political party, and depressing voter enthusiasm and participation. It is not enough to rely

upon facial equality to justify overlooking practical impediments that disproportionately

affect smaller parties to the clear benefit of major parties, especially where the rationales

[J-61-2018] [MO: Mundy, J.] - 34 offered in support of regulations that have such an effect are not more clearly tailored to,

or effective in advancing, the stated goals. Cf. Buckley, 424 U.S. at 97-98 (“Sometimes

the grossest discrimination can lie in treating things that are different as though they were

exactly alike, a truism well illustrated in Williams v. Rhodes . . . .”).

Thus, I respectfully dissent.

Justice Donohue joins the concurring and dissenting opinion.

[J-61-2018] [MO: Mundy, J.] - 35