Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2006

Rogers v. Corbett
Precedential or Non-Precedential: Precedential

Docket No. 06-2241




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                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-2241


     MARAKAY J. ROGERS, Esquire, Candidate
 for Governor of Pennsylvania; THE GREEN PARTY
  OF PENNSYLVANIA, c/o Paul Teese, Chair; THE
  CONSTITUTION PARTY OF PENNSYLVANIA;
      KEN V. KRAWCHUK; HAGAN SMITH,

                                   Appellants.
                         v.

  THOMAS W. CORBETT, JR., Attorney General
     of Pennsylvania; COMMONWEALTH OF
                  PENNSYLVANIA,
 c/o Office of the Attorney General of Pennsylvania;
 GOVERNOR EDWARD G. RENDELL; PEDRO A.
                      CORTES,
    Secretary of Commonwealth of Pennsylvania



   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
           District Court No. 06-cv-00066
        District Judge: Hon. John E. Jones, III


               Argued on July 10, 2006
      Panel Rehearing Granted November 3, 2006
Before: SMITH, ALDISERT, and ROTH, Circuit Judges

         (Opinion filed: November 3, 2006)
                        OPINION



Samuel C. Stretton, Esquire (Argued)
301 South High Street
P. O. Box 3231
West Chester, PA 19381-3231

             Counsel for Appellants

Thomas W. Corbett, Jr., Esquire
Attorney General
Howard G. Hopkirk, Esquire (Argued)
Senior Deputy Attorney General
John G. Knorr, III, Esquire
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of the Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120

             Counsel for Appellees


ROTH, Circuit Judge:

       Plaintiffs, a group of minor political parties and minor
party nominees for state-wide office,1 challenged the
constitutionality of Section 2911 of the Pennsylvania election
code, 25 PA. CONS. STAT. § 2911(b), as applied to minor
political parties and their candidates. They moved for a


     1
      Plaintiffs are Marakay Rogers, Esq., the Green Party
candidate for Governor in the November 2006 general election;
the Green Party of Pennsylvania; Hagan Smith, the Constitution
Party candidate for Governor; the Constitution Party of
Pennsylvania; and Ken V. Krawchuk, the Libertarian Party
candidate for the United States Senate.

                              2
preliminary injunction against Pedro A. Cortes, Secretary of the
Commonwealth of Pennsylvania. The District Court denied the
motion and plaintiffs appealed. For the reasons stated below,
we will affirm the judgment of the District Court.

I.       Background

        Under Pennsylvania law, a political body is qualified as
a political party when one of its candidates obtains a 2% level of
support in the preceding general election. Specifically, 25 PA.
CONS. STAT. § 2831(a) defines a political party as:

         Any party or political body, one of whose candidates at
         the general election next preceding the primary polled in
         each of at least ten counties of the State not less than two
         per centum of the largest entire vote cast in each of said
         counties for any elected candidate, and polled a total vote
         in the State equal to at least two per centum of the largest
         entire vote cast in the State for any elected candidate, is
         hereby declared to be a political party within the State.

Pennsylvania law further distinguishes between political parties
(a/k/a/ major political parties) and minor political parties. Minor
political parties are political parties with registered membership
of less than 15% of the state-wide registration for all political
parties.2

       Political parties, i.e., at present the Republican and
Democrat parties, place their candidates on the general election
ballot via a primary system. 25 PA. CONS. STAT. § 2862. To
appear on the ballot for the primary election, the Republican and
Democrat candidates must get a prescribed number of signatures


     2
   A minor political party is defined in 25 PA. CONS. STAT. §
2872.2 as a:
      political party . . . whose State-wide registration is less
      than fifteen per centum of the combined State-wide
      registration for all State-wide political parties as of the
      close of the registration period immediately preceding
      the most recent November election.

                                  3
from individuals who are members of their respective parties.
For example, a candidate for Governor must obtain 2,000
signatures. The winner of a plurality of votes in the primary is
placed on the general election ballot as the candidate of his or
her respective party.

        Minor political parties, as well as political bodies not
recognized as parties, place their candidates, and independent
candidates place their names, on the general election ballot by
nomination petitions. 25 PA. CONS. STAT. §§ 2872.2, 2911. To
be placed on the general election ballot by a nomination petition,
the candidate must obtain the signatures of a prescribed number
of registered voters (regardless of party). The number of
signatures must be equal to 2% of the vote total of the candidate
who obtained the highest number of votes for state-wide office
in the previous election.3

        Candidates have approximately five months to circulate
nomination petitions. For the November 2006 general election,
petitions can be circulated from March 8, 2006, until August 1,
2006. A signatory must be a qualified elector of Pennsylvania
who has registered to vote either on or before the day he signs
the nomination petition. A signatory need not be a member of
a political party. A signatory may sign a minor party
candidate’s nomination petition even if he has signed a
nomination petition in support of a Republican or Democrat or
voted in a major party primary, but a signatory may sign a
nomination petition in support of only one candidate for each
office for which there is a vacancy.

       Unfortunately for minor political parties, political bodies

   3
    25 PA. CONS. STAT. § 2911(b) provides that:

       Where the nomination is for any office to be filled by the
       electors of the State at large, the number of qualified
       electors of the State signing such nomination paper shall
       be at least equal to two per centum of the largest entire
       vote cast for any elected candidate in the State at large at
       the last preceding election at which State-wide
       candidates were voted for.

                                4
and independent candidates, Bob Casey, Jr., soundly defeated
his challenger for State Treasurer in 2004 in the biggest voter
turnout in Pennsylvania history. Consequently, the “largest
entire vote cast for any elected candidate in the State at large” is
larger this cycle than in previous election years, based on
Casey’s high total. As such, 2% of that total, the number of
required signatures, is 67,070, compared to previous years in
which the number generally ranged between 30,000 and
50,000.4

        Plaintiffs are challenging the constitutionality, as applied
to minor political parties, of the 2% variable threshold
requirement of § 2911(b) for a candidate to be placed on the
general election ballot. The feature which distinguishes
plaintiffs’ argument from previous attacks on § 2911(b) is that
plaintiffs are challenging the combination of § 2831(a)’s 2%
precondition to qualify as a political party and § 2911(b)’s 2%
signature requirement that a minor political party must obtain in
order for its candidates to be placed on the general election
ballot. Plaintiffs contend that, having shown the 2% voter
support in the previous election, they have shown their
necessary “modicum” of support and should not have to petition
to place candidates on the ballot.

        Plaintiffs brought an action for declaratory and injunctive
relief pursuant to 42 U.S.C. § 1983 on the grounds that §
2911(b) violates both the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution and the minor
political parties’ right of freedom of association under the First
Amendment. For relief, plaintiffs have asked the District Court
to enter an order allowing their parties’ nominees to be placed
on the general election ballot if they obtain the same number of
signatures that candidates for the Republican and Democrat
parties need to be placed on the primary ballot. Alternatively,
plaintiffs have proposed other schemes to allow minor political
party candidates to be placed on the general election ballot after
demonstrating a lesser level of support. Plaintiffs also urge that
minor political parties ought not to be subject to any signature
requirement in light of the fact that they have already qualified

   4
    The previous high number was 58,035 in 1989.

                                 5
as a political party.

       The parties jointly stipulated to the applicable facts. On
April 5, 2006, the District Court denied the plaintiffs’ motion for
a preliminary injunction on the ground that § 2911(b) was
constitutional. At the same time, the District Court strongly
urged the Pennsylvania General Assembly to reconsider the 2%
threshold in light of the 67,070 signatures needed this cycle.
This timely and expedited appeal followed.

II.       Jurisdiction and Standard of Review

        The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction under 28 U.S.C. §
1292(a)(1) (noting that “the courts of appeals shall have
jurisdiction of appeals from: (1) Interlocutory orders of the
district courts of the United States . . . granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions.”).

       Ordinarily, we use a three-part standard to review a
District Court's decision to grant or deny a preliminary
injunction. Child Evangelism Fellowship of New Jersey, Inc. v.
Stafford Twp. Sch. Dist., 

, 524 (3d Cir. 2004). The
District Court's findings of fact are reviewed for clear error, the
District Court's conclusions of law are evaluated under a plenary
standard, and the ultimate decision to grant the preliminary
injunction is reviewed for abuse of discretion.5 

for preliminary relief is a familiar one. A party


      5
    When First Amendment rights are at issue this standard is
modified. Although we normally will not disturb the factual
findings supporting the disposition of a preliminary injunction
motion in the absence of clear error, we have a constitutional
duty to conduct an independent examination of the record as a
whole when a case presents a First Amendment claim. Child
Evangelism 

. Here, however, the
District Court’s factual findings are not in dispute, although the
parties do dispute their practical import.

                                   6
seeking a preliminary injunction must show that (1) it has a
likelihood of success on the merits, (2) it will suffer irreparable
harm if the injunction is denied, (3) granting preliminary relief
will not result in even greater harm to the nonmoving party, and
(4) the public interest favors such relief.” 

Pharms., Inc. v. Andrx Corp., 

(3d Cir. 2004)).
Generally, a panel entertaining a preliminary injunction appeal
decides only whether the district court abused its discretion in
ruling on the request for relief and does not go into the merits
any further than necessary to determine whether the moving
party established a likelihood of success. 

we
are not required to take this narrow approach because the appeal
from the denial of the preliminary injunction presents a question
of law; the facts are either established or of no controlling
relevance. 

a case, we may decide the merits of the
claim. 

       A.      The District Court’s Decision

        In denying plaintiffs’ request for a preliminary
injunction, the District Court found that § 2911(b) did not
impose a severe burden upon the plaintiffs’ constitutional rights.
Consequently, the court applied the familiar rational basis test
to the statute to determine its constitutionality. As to the burden
to minor political parties, the District Court noted that the 2%
threshold of actual votes cast for a candidate was lower than the
5% threshold of eligible voters upheld after rational basis review
by the Supreme Court in Jenness v. Fortson, 

(1971). Also, the District Court observed that minor political
parties may obtain the needed signatures from the entire
population of registered voters in Pennsylvania regardless of the
voters’ party affiliation and that, otherwise, the nomination
papers process is not overly burdensome. See generally Storer
v. Brown, 

, 738-40 (remanding to the District Court
to determine the burden on meeting the signature requirement
while laying out a list of relevant factors for the District Court’s
consideration).       Next, the District Court found that
Pennsylvania’s interests in decreasing ballot clutter and ensuring
that only viable candidates are placed on the general election

                                 7
ballot justified the 2% threshold found in § 2911(b) and the
corresponding burdens on minor political parties’ rights.

        In addition, the District Court dismissed the plaintiffs’
equal protection claim that the plaintiffs had based on the
difference in treatment between minor political parties and
“major,” i.e., Republican and Democrat, political parties. The
District Court noted that, in Jenness, the Supreme Court held
that there are legitimate reasons for states to treat minor and
major party candidates 

.
Furthermore, the District Court opined that Pennsylvania law
actually treats major party candidates more harshly than their
minor party colleagues by requiring major party candidates to
poll a plurality of their party’s votes to be placed on the general
election ballot, which in all likelihood is a higher absolute
number than the 2% signature requirement for minor party
candidates. For these reasons, the District Court denied the
plaintiffs’ motion for a preliminary injunction.

       B.     Anderson and the Levels of Scrutiny

        At oral argument before us, the parties were questioned
about the applicable level of scrutiny and whether Anderson v.
Celebrezze, 

(1983), annuls, or otherwise changes,
the familiar strict scrutiny, intermediate scrutiny, and rational
basis classifications as applied to ballot access cases. First, we
note that this Court, as well as others, has been unclear whether
the Anderson balancing test applies to ballot access claims
brought under the Equal Protection Clause, given that Anderson
is a First Amendment case. See Belitskus v. Pizzingrilli, 

, 643 n.8 (3d Cir. 2003). We clarify here that the
Anderson test is the proper method for analyzing such equal
protection claims due to their relationship to the associational
rights found in the First Amendment. In Belitskus, we observed
that we could not “see any basis for refusing to so apply
(Anderson).” Id; see also Reform Party of Allegheny Co. v.
Allegheny Co. Dep’t. of Elections, 

, 314 (3d Cir.
1999) (assuming that “burdens require the same level of scrutiny
in an equal protection analysis that they do in an associational
rights analysis.”). Likewise, our sister Circuits have applied
Anderson to similar claims under the Equal Protection Clause.

                                8
See, e.g., Fulani v. Krivanek, 

, 1542-44 (11th Cir.
1992); Republican Party of Arkansas v. Faulkner Co., 

, 1293 n.2 (8th Cir. 1995) (“In election cases, equal
protection challenges essentially constitute a branch of the
associational rights tree.”). As such, we conclude that Anderson
sets out the proper method for balancing both associational and
equal protection concerns and the burdens that the challenged
law creates on these protections as weighed against the proffered
state interests.

        What then is the import of Anderson on the traditional
three tiers of scrutiny? Although we appreciate that the strict
scrutiny, intermediate scrutiny, and rational basis categories
represent a convenient and familiar linguistic device by which
courts, including our Court,6 have characterized their review
under Anderson, we note that Anderson promulgated a less
categorical system of classification. See Burdick v. Takushi, 

, 434 (1992) (noting that the full Court agreed in
Anderson that “a more flexible standard applies.”). Put another
way, ballot access cases should not be pegged into the three
aforementioned categories. Rather, following Anderson, our
scrutiny is a weighing process: We consider what burden is
placed on the rights which plaintiffs seek to assert and then we
balance that burden against the precise interests identified by the
state and the extent to which these interests require that
plaintiffs’ rights be burdened. Only after weighing these factors
can we decide whether the challenged statute is unconstitutional.

. Consequently, we will look at the
nature of the rights involved here and the burdens imposed by
Pennsylvania election law on minor political parties in order to
determine if the burden is justified.



       C.     Equal Protection

       Ballot access is recognized as an important aspect of
voting rights. See Bullock v. Carter, 

, 143 (1972)

   6
    See, e.g., Reform Party of Allegheny 

(applying an intermediate level of scrutiny).

                                9
(“laws that affect candidates always have at least some
theoretical, correlative effect on voters”). Nevertheless, using
the pre-Anderson standard, “not every limitation or incidental
burden on the exercise of voting rights is subject to a stringent
standard of review.” 

v. Board of Election,

(1969)). We interpret this standard to mean post-
Anderson that the right to ballot access, although important in
both First Amendment and Equal Protection contexts, may be
limited in accord with appropriate state interests, and that
limitations imposed in furtherance of such interests need not be
the most narrowly drawn as long as they are nondiscriminatory
and reasonable in light of the relevant burdens. See 

(“[T]he state’s important regulatory interests are
generally sufficient to justify reasonable, nondiscriminatory
restrictions.”).

       The state interests here are avoiding ballot clutter and
ensuring viable candidates. These interests have long been
recognized as valid ones. See 

. The
burden is the 2% signature requirement. This burden is not
unreasonable. In light of the more obtrusive law upheld in
Jenness, “it is beyond dispute that Pennsylvania's 2% (signature)
requirement (for ballot access) is facially valid.” The Patriot
Party of Pa. v. Mitchell, 

, 939 (E.D. Pa. 1993);
Perry v. Grant, 

, 826 (M.D. Pa. 1991) (“Two
percent is not an inherently unreasonable or unduly burdensome
signature requirement.”). Indeed, plaintiffs do not seriously
contest the facial validity of the state’s proffered legitimate
interest – reducing ballot clutter and ensuring viable candidates.
See generally Munro v. Socialist Workers Party, 

,
195 (1986) (noting that states do not have to prove actual ballot
overcrowding). Furthermore, in Storer the Supreme Court noted
that “gathering 325,000 signatures in 24 days would not appear
to be an impossible 

. Here, the burden
on minor parties is significantly less, both in terms of the
number of signatures and the time allowed to obtain them. Also,
the fluctuations in the total do not present constitutional issues.

(“the fact that the total number of
signatures required fluctuates with election results does not
render it unconstitutional.”).



                                10
         Given that courts have held that signature requirements
at a percentage rate even greater than the number involved here
are reasonable, and in view of the acknowledged state’s interest
in imposing this burden, we conclude that § 2911(b) is not
unconstitutionally burdensome on its face. Moreover, weighing
the nature of the right involved and the burden imposed, the
state is not limited in imposing this burden to the least restrictive
methods of doing so.

        This conclusion, however, is not the end of the analysis.
See The Patriot Party of 

(noting that
“the Supreme Court has on two separate occasions invalidated
facially valid ballot access laws because of their application to
a political party.”). In this regard, plaintiffs contend that the 2%
level of support that minor political parties must have previously
demonstrated to be labeled a political party pursuant to §
2831(a) is a sufficient “modicum of support” to fulfill any of the
state’s legitimate interests. See 

. In
effect, plaintiffs are arguing that the combination of the 2% level
of voter support requirement for minor party status in § 2831(a)
plus the 2% signature requirement necessitated by § 2911(b)
combine to form a constitutional violation. In making this
argument, the plaintiffs rely heavily on a Maryland case,
decided under Maryland law, that found that a similar “two-tier”
arrangement violated the equal protection guarantees found in
Article 24 of the Maryland Declaration of Rights. See Maryland
Green Party v. Maryland Bd. of Elections, 

(Md.
2003).7 Despite Maryland Green Party, however, plaintiffs’
argument fails.

   7
    We, of course, are in no way bound by this interpretation of
the Maryland state constitution. Moreover, the factual
differences in Maryland Green Party are significant. In
particular, the Green Party had qualified as a political party on
August 16, 2000, by gathering 10,000 signatures, and then had
to produce a petition, signed by 1% of total registered voters, to
get its candidate on the ballot in Maryland for the November
2000 election. We distinguish Maryland Green Party from the
present case because of the factual requirements of the Maryland
statutes, requiring the gathering of two sets of signatures within
a two month period.

                                 11
        Although plaintiffs point to the distinction in ballot
access between the major political parties, which place their
candidates on the ballot via a primary, and minor political
parties, which have to use the nomination petition system, they
do not seriously challenge this distinction, and under Jenness,
alternate ballot access rules for major and minor political parties
are not per se 

. (“[T]here
are obvious differences in kind between the needs and potentials
of a political party with historically established broad support,
on the one hand, and a new or small political organization on the
other. Georgia has not been guilty of invidious discrimination
in recognizing these differences and providing different routes
to the printed ballot.”). But see 

(“A
burden that falls unequally on new or small political parties or
on independent candidates impinges, by its very nature, on
associational choices protected by the First Amendment.”).

       Moreover, the two-tiered nature of the minor political
party process is consistent with, albeit different from, the two-
tiered process for major political parties. Going back to the
Anderson methodology, we conclude that the “two-tiered”
nature of the law does not constitute an unacceptable burden.

        Plaintiffs contend, however, that their showing of support
to qualify as a political party is the sufficient “modicum of
support” to be placed on the general election ballot. But in
employing the “modicum” language in Jenness, the Supreme
Court did not state that any showing of a modicum of support
was sufficient to allay the state’s legitimate concerns vis-à-vis
ballot clutter. Rather, the Court stated that:

       There is surely an important state interest in requiring
       some preliminary showing of a significant modicum of
       support before printing the name of a political
       organization's candidate on the ballot – the interest, if no
       other, in avoiding confusion, deception, and even
       frustration of the democratic process at the general
       

. Here, the state’s chosen “modicum of support”
for political entities with less than 15% of the combined state-


                                12
wide registration is the two percent signature threshold found in
2911(b).8 The fact that a minor political party has earlier shown
a modicum of support by meeting a separate goal, which entails
a separate distinction, does not render the burden on plaintiffs an
improper one. See generally The Patriot Party of 

(rejecting “the proposition that a political party
should not have to re-establish a significant modicum of support
in subsequent elections after it has met that burden once.”). To
hold otherwise risks infringing on an area traditionally allocated
to the states. See The Council of Alternative Political 

(noting that “states have broad power to enact
election codes that comprehensively regulate the electoral
process.”).

       Moreover, the fact that only New Mexico has a similar
“two-tiered” system does not inflate the burden on the plaintiffs

  8
    Judge Smith would note that the plaintiffs did not argue that
the state’s definition of minor and major political parties by their
voter registration, rather than by their prior electoral support,
could potentially be used to distinguish this case from Jenness.
Cf. 

(noting that Georgia determined which political
organizations were “political bodies” and not “political parties,”
and thus which nominating organizations were subject to the
relevant signature requirement, on the basis of whether the
organization's “candidate received 20% or more of the vote at
the most recent gubernatorial or presidential election”). Rather,
as the plaintiffs made clear during oral argument, they chose to
rely instead on their argument that as applied to them, the
signature requirement was unnecessary and therefore
unreasonably burdensome.
        Accordingly, we do not consider how the state's use of
voter registration to define major and minor political parties
might affect our scrutiny of the state’s electoral laws, although
we note that the Supreme Court in Anderson required that a
state’s ballot access restrictions be both reasonable and
nondiscriminatory. 

; see also 

(“Our ballot access cases ... focus on the degree to which the
challenged retsrictions to exclude certain classes of candidates
from the electoral process.”)(quoting Clements v. Fashing, 

, 964 (1982)).

                                13
here, nor does it call into question the legitimacy of
Pennsylvania’s proffered interests. See generally 

(arguing that “[i]t is not the courts’ function to
weigh the procedure chosen by the state legislature against the
feasibility of less burdensome alternatives it could have
chosen.”). There are analogous obligations to demonstrate
continuing voter support in the retention requirements found in
other states. Our sister Circuits have upheld such retention
requirements, which require a party to collect signatures to gain
a place on the ballot and then invalidate a party's ballot-qualified
status for the next election if the party's candidate does not
receive a certain percentage of the vote, even though the party
had shown an initial modicum of support. See, e.g., McLaughlin
v. North Carolina Bd. of Elections, 

, 1221 (4th Cir.
1995), cert. denied, 

(1996); Rainbow Coalition
v. Oklahoma State Election Bd., 

, 741-42 (10th Cir.
1988).

       In addition, the lapse of time between reaching the 2%
threshold in the previous election and having to obtain petition
signers for the next election does not result in an unacceptably
close measurement of the same indicia of support as was the
case with the two-tier system in Maryland.9 A minor political
party could have polled well in the previous election, based on
a relatively well-known candidate, thus meeting the
requirements of § 2831(a), but then run a slate of candidates
who could not garner the necessary “modicum” of support in the
upcoming election. Permitting the “modicum” to be perpetual
may result in ballot clutter.

      As such, the District Court did not err in holding that the
minimal burdens on minor political parties was justified by
Pennsylvania’s interest in preventing ballot clutter and ensuring

   9
    See Maryland Green 

. Under the
Maryland statutory scheme, the Green Party qualified as a
political party on August 16, 2000, by submitting 10,000
signatures. The Green Party’s candidate for the November 2000
election then had to produce a petition signed by at least 1% of
the total number of registered voters in the contested
congressional district.

                                14
viable candidates. After weighing the rights affected, the
interests involved, and the extent to which these interests require
the rights to be burdened, see 

, we
conclude that the plaintiffs have not demonstrated that the
method chosen by the state to accomplish these interests violates
the plaintiffs’ rights to the equal protection of the laws.

          D.   Freedom of Association

       Next, plaintiffs argue that under the reasoning of the
Supreme Court in California Democratic Party v. Jones, 

(2000), § 2911(b) violates their right to freedom of
association and is thus unconstitutional. The Court in Jones
struck down a California law that converted the state’s primaries
from closed to open. In the proposed, open primary, voters
could select any candidate regardless of the voter’s or the
candidate’s affiliation. Plaintiffs argue that they face a similar
interference here because the 2% signature threshold requires
minor political parties to obtain signatures from individuals who
are not members of their respective parties. Republican and
Democratic nominees, on the other hand, need not seek support
from persons of other viewpoints to get on the Pennsylvania
general election ballot.

        Jones, however, is not applicable to a ballot access case,
like the present one, in which internal party deliberations on the
choice of party candidates are not implicated. Unlike the law at
issue in Jones, Pennsylvania election law does not open the
intra-party deliberations of minor political parties to persons
who are unaffiliated with the party. “Forced” association caused
by § 2911(b) occurs only as a minor party candidate solicits
signatures from registered voters, who may be registered with
any party or as an independent. However, in Jenness10 and its
progeny, the Supreme court recognized that the test for a
modicum of support can be taken from registered voters in
general in order to allow access to the general election ballot.
But in regard to the issue presented in Jones, the intra-party

     10
       Plaintiffs have questioned the wisdom of the Supreme
Court’s decision in Jenness. We note in passing that it is not the
role of this Court to overturn Supreme Court precedent.

                                15
procedures to select the party’s candidates, there is no
interference under the Pennsylvania system. In Pennsylvania,
a minor political party is free to select anyone it chooses as its
candidate, unaffected by the requirements of § 2911(b). As
such, Jones is inapplicable.

        In addition, the Supreme Court’s fusion law
jurisprudence supports the distinction between intra-party
deliberations and ballot access, with the former enjoying a
higher degree of constitutional protection. For example, in
Timmons v. Twin City Area New Party, 

(1997), the
Supreme Court upheld a Minnesota law that prevented a
candidate from being nominated by more than one party, i.e. an
anti-fusion law. In distinguishing the case from Tashjian v.
Republican Party of Connecticut, 

(1986),
overturning Connecticut's primary election statute which was in
opposition to the rules of the Republican party, the Supreme
Court noted that Tashjian “involved (the) regulation of political
parties’ internal affairs and core associational activities,
Minnesota’s fusion ban does not.” 

-
60. Here, Pennsylvania’s 2% requirement regulates neither the
minor political parties’ internal affairs nor its core associational
activities. Thus, we agree with the District Court’s ultimate
conclusion that associational rights are not violated by §
2911(b).

IV.    Conclusion

        For the reasons discussed above, we will affirm the
District Court’s denial of the plaintiffs’ motion for a preliminary
injunction. In addition, we will “affirm” the suggestion of the
District Court that the Pennsylvania General Assembly
“consider enactments that will simultaneously meet the
identified state interests but also allow for a less ponderous
means of ballot access for minor political parties in
Pennsylvania.”




                                16