Patriot Party Alghny v. Alghny Cty Dept ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-30-1999
    Patriot Party Alghny v. Alghny Cty Dept
    Precedential or Non-Precedential:
    Docket 96-3677,97-3359
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    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/85
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    Filed March 30, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 96-3677 and 97-3359
    REFORM PARTY OF ALLEGHENY COUNTY
    v.
    ALLEGHENY COUNTY DEPARTMENT OF ELECTIONS;
    MARK WOLOSIK, Director of the Allegheny County
    Department of Elections,
    Appellants.
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (Civil Action No. 93-cv-01884 and 97-3359)
    [District Judge: Honorable William L. Standish
    Argued: December 12, 1997
    Before: NYGAARD, ALITO, Circuit Judges
    and DEBEVOISE, District Judge1
    Reargued January 13, 1999
    Before: BECKER, Chief Judge, SLOVITER, STAPLETON,
    MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO,
    ROTH, LEWIS, MCKEE, RENDELL and ROSENN,
    Circuit Judges
    (Opinion filed: March 30, 1999)
    _________________________________________________________________
    1. The Honorable Dickinson R. Debevoise, Senior United States District
    Judge for the District of New Jersey, sitting by designation.
    Kerry Fraas
    County Solicitor
    Allan J. Opsitnick (Argued)
    Assistant County Solicitor
    Michael McAuliffe Miller
    Assistant County Solicitor
    Allegheny County Law Dept.
    300 Ft. Pitt Commons
    445 Ft. Pitt Blvd.
    Pittsburgh, PA 15219
    Attorneys for Appellants
    Cornish F. Hitchcock, Esquire
    (Argued)
    Public Citizen Litigation Group
    1600 20th Street, N.W.
    Washington, D.C. 20009-1001
    Sarah E. Siskind, Esquire
    Miner, Barnhill & Galland
    44 East Mifflin Street, Suite 803
    Madison, WI 53703
    Jonathan B. Robison, Esquire
    712 Allegheny Building
    429 Forbes Avenue
    Pittsburgh, PA 15219
    Attorneys for Appellee
    OPINION OF THE COURT
    ROTH, Circuit Judge:
    In this en banc review, we must determine to what extent
    our earlier decision in Patriot Party of Allegheny County v.
    Allegheny County Dep't of Elections, 
    95 F.3d 253
     (3d Cir.
    1996) (Patriot Party I), remains good law in the wake of the
    Supreme Court's decision in Timmons v. Twin Cities Area
    New Party, 
    117 S. Ct. 1364
     (1997). In Patriot Party I, we
    held that the Pennsylvania statutes at issue, which in
    certain local elections bar cross-nomination of candidates
    by minor parties, but not by major parties, violated the
    2
    Patriot Party's2 right to freedom of association under the
    First and Fourteenth Amendments, as well as its right to
    equal protection of the laws under the Fourteenth
    Amendment. We now conclude that the decision in
    Timmons, in upholding a Minnesota "anti-fusion" statute
    against a First Amendment attack, does not undercut our
    equal protection analysis in Patriot Party I. We will,
    therefore, reaffirm our holding that the Pennsylvania
    statutes here, as applied to the local elections in question,
    violate the Patriot Party's right to equal protection of the
    laws.
    I. Background
    This en banc review implicates two separate but related
    cases. In both cases, the Patriot Party challenged the
    constitutionality of Pennsylvania's ban on minor party
    "cross-nominations" in certain local offices, 25 Pa. Stat.
    Ann. SS 2936(e) and 2911(e)(5), as a violation of the Patriot
    Party's right to freedom of association and its right to the
    equal protection of the laws. In essence, the challenged
    statutes prevent minor political parties from cross-
    nominating a candidate for certain local offices when that
    candidate has already been nominated for the same office
    by another political party. The major parties, however, are
    allowed to engage in cross nomination or "fusion" for those
    local offices.3 As a consequence, while Pennsylvania
    prohibits all parties from cross-nominating the same person
    for most state offices, it makes an exception in primary
    elections for five local offices,4 in which major parties are
    _________________________________________________________________
    2. By Order dated January 14, 1999, this court granted plaintiff 's
    motion to amend the caption to change the name of Patriot Party of
    Allegheny County to Reform Party of Allegheny County. In this opinion,
    we will continue to use the former appellation.
    3. "Fusion" is "the nomination by more than one political party of the
    same candidate for the same office in the same general election."
    Timmons, 
    117 S. Ct. at
    1367 n.1 (citing Twin Cities Area New Party v.
    McKenna, 
    73 F.3d 196
    , 197-98 (8th Cir. 1996)).
    4. The five offices are "judge of a court of common pleas, the
    Philadelphia
    Municipal Court or the Traffic Court of Philadelphia, . . . school
    director
    in a district where that office is elective, or . . . justice of the
    peace." 25
    Pa. Stat. Ann. S 2870(f).
    3
    permitted to cross-nominate each other's candidates, but
    minor parties are prohibited from so doing.5
    The undisputed facts of the first case (No. 97-3359) are
    set forth in Patriot Party I, but we summarize them briefly
    here. The case stemmed from the Patriot Party's attempt to
    nominate Michael Eshenbaugh as a candidate for school
    director in Pennsylvania's North Allegheny School District
    in the November 1993 general election. This nomination
    was barred by the application of the fusion ban, because
    Eshenbaugh had already sought the nomination of both
    major parties in the May 1993 municipal primary, in which
    he had secured the nomination of the Democratic Party,
    but not of the Republican Party.
    _________________________________________________________________
    5. The court in Patriot Party I explained the structure of the challenged
    statutes:
    As a minor political party, the Patriot Party does not file
    "nomination petitions" for the primary elections, as do the major
    political parties. Instead, the Patriot Party, like other minor
    political
    parties, must file "nomination papers" containing the number of
    signatures specified by Pennsylvania law. 25 Pa. Stat. Ann. S 2872.
    Section 2936(e) of the Pennsylvania Code prohibits the filing of a
    nomination paper "if the candidate named therein has filed a
    nomination petition for any public office for the ensuing primary,
    or
    has been nominated for any such office by nomination papers
    previously filed. . . ." Furthermore, S 2911(e)(5) requires that
    [t]here shall be appended to each nomination paper ... an affidavit
    of each candidate nominated therein, stating-- . .. (5) that his
    name has not been presented as a candidate by nomination
    petitions for any public office to be voted for at the ensuing
    primary election, nor has he been nominated by any other
    nomination papers filed for any such office. . ..
    The above sections of the election code apply only to the
    "nomination papers" filed by minor parties and not to "nomination
    petitions" filed by the major parties participating in the
    primaries.
    Thus, while S 2870(f) of the Pennsylvania election code expressly
    allows the major parties to cross-nominate candidates for school
    director, SS 2936(e) and 2911(e)(5) prevent such cross-nomination
    by
    minor political parties.
    Patriot Party I, 
    95 F.3d at
    256 n.1.
    4
    In February 1994, the Patriot Party filed suit for
    declaratory and injunctive relief under 42 U.S.C.S 1983
    against the Allegheny County Department of Elections and
    its director (collectively, "the Department"), alleging that the
    two relevant sections of the Pennsylvania Election Code
    violate the Patriot Party's right of free association under the
    First and Fourteenth Amendments, as well as its right to
    equal protection of the laws under the Fourteenth
    Amendment. The District Court granted summary judgment
    for the Department. On appeal, a divided panel of this court
    reversed the District Court's ruling on September 9, 1996,
    in Patriot Party I. On November 4, 1996, we denied the
    Department's petition for rehearing en banc. The
    Department did not seek a writ of certiorari. On remand,
    the District Court entered an order granting declaratory
    and injunctive relief in favor of the Patriot Party.
    Four months later, on April 28, 1997, the Supreme Court
    issued its decision in Timmons. As a result, on April 30, the
    Department filed a motion for relief from judgment in this
    case pursuant to Fed. R. Civ. P. 60(b). The District Court
    denied the requested relief. The Department appealed that
    order, and another panel of this court affirmed it in an
    opinion filed June 15, 1998 ("Patriot Party II"), which we will
    discuss further in connection with the second case.
    The undisputed facts of the second case (No. 96-3677)
    also involve a nomination to the office of school director in
    the North Allegheny School District. On May 13, 1995, the
    Patriot Party selected several candidates for this office,
    including Barbara Childress. On May 16, 1995, before the
    municipal primary elections, Childress perfected her
    nomination as one of the Patriot Party's candidates by filing
    nomination papers with the Department.
    Childress also sought the nominations of the Republican
    and Democratic parties, and in the municipal primary she
    won both of these nominations. On May 24, 1995, the
    Department informed Childress that, since she had
    previously filed nomination petitions seeking the
    nominations of the major parties, she was prohibited from
    seeking the nomination by a minor party.
    The Patriot Party brought an action pursuant to 42
    U.S.C. S 1983, seeking injunctive and declaratory relief,
    5
    alleging once again that the two pertinent sections of the
    Pennsylvania Election Code violate the Patriot Party's right
    of free association and its right to equal protection of the
    laws. The Department filed a motion to dismiss pursuant to
    Fed. R. Civ. P. 12(b)(6), while the Patriot Partyfiled a
    motion for summary judgment under Fed. R. Civ. P. 56. In
    October 1996 (several months before Timmons was
    decided), the District Court, relying on this Court's decision
    in Patriot Party I, granted the Patriot Party's motion for
    summary judgment, denied the Department's motion to
    dismiss, and entered an order granting the requested
    injunctive and declaratory relief. On appeal, that order was
    also affirmed in Patriot Party II. In Patriot Party II, the panel
    recognized that Patriot Party I had held that the
    Pennsylvania laws violated the equal protection rights of
    the Patriot Party. The panel concluded that it was bound by
    Patriot Party I insofar as the equal protection holding had
    not been overruled by Timmons.
    On June 30, 1998, the Department filed a petition for
    rehearing en banc, asking us to decide whether Patriot
    Party I (and by extension, Patriot Party II ) has been
    overruled by Timmons. On July 22, 1998, we granted the
    petition for rehearing en banc. For the reasons we set out
    below, we conclude that Patriot Party I has not been
    overruled to the extent that it held that the Patriot Party's
    right to equal protection of the laws was violated by the ban
    on minor party fusion in the local elections in question.
    II. Patriot Party I and Timmons
    To begin our discussion, it is helpful first to review the
    holdings in Patriot Party I and in Timmons. In Patriot Party
    I, a panel of this court held that 25 Pa. Stat. Ann.
    SS 2936(e) and 2911(e)(5), which prohibit minor parties, but
    not major parties, from cross-nominating candidates in
    certain local elections, violate minor parties' rights to
    freedom of association and equal protection of the laws.
    In its freedom of association analysis, the Patriot Party I
    panel applied the standard set forth in Supreme Court
    precedent, including Eu v. San Francisco County Democratic
    Cent. Comm., 
    489 U.S. 214
    , 222 (1989), and Anderson v.
    6
    Celebrezze, 
    460 U.S. 780
    , 789 (1983). The panel reiterated
    the standard:
    To determine whether a state election law violates the
    U.S. Constitution, we first examine whether the
    challenged law burdens rights protected by the First
    and Fourteenth Amendments. If the law does burden
    protected rights, we must gauge the character and
    magnitude of the burden on the plaintiff and weigh it
    against the importance of the interests that the state
    proffers to justify the burden. We examine not only the
    legitimacy and strength of the state's proffered
    interests, but the necessity of burdening the plaintiff's
    rights in order to protect those interests. If the burden
    on the plaintiff's rights is severe, the state's interest
    must be compelling and the law must be narrowly
    tailored to serve the state's interests.
    Patriot Party I, 
    95 F.3d at 258
     (citations omitted).
    The panel, applying the standard, concluded that the
    Pennsylvania statutes infringed upon the Patriot Party's
    right of free association in two ways: "First, the restriction
    prevents the Party from nominating the standard bearer
    who the Party thinks will ``most effectively advance [its]
    program and platform.' Second, the challenged election
    laws deprive the Patriot Party of an opportunity to``fuse' its
    votes with those of a major party and thereby to make
    inroads into the political process." 
    Id.
     Because the panel
    found these burdens to be severe, it held that Pennsylvania
    "must demonstrate that these laws are narrowly tailored to
    serve a compelling state interest." 
    Id. at 264
    . The panel
    concluded, however, that the justifications offered by the
    Department did not meet this test. 
    Id.
     Specifically, the
    Department had argued that four important state interests
    were served: "(1) preventing ``sore loser' candidacies; (2)
    preventing individual candidates from ``monopolizing' the
    ballot and causing voter confusion; (3) preventing a
    candidate from ``bleed[ing] off votes of independent voters to
    bolster his or her major party endorsement'; and (4)
    encouraging new candidates to run as independents." 
    Id.
    The panel examined each of these interests and found that
    they did not bear scrutiny. 
    Id. at 264-68
    .
    7
    The panel also held that the challenged statutes violate
    minor parties' right to equal protection of the laws. The
    panel observed that the statutes facially discriminated
    between major and minor parties, and that in this respect
    the case was distinguishable from the Minnesota statutes
    the Eighth Circuit Court of Appeals had considered in
    Timmons. 
    Id. at 268
    . Relying on the principles and
    structure of the equal protection analysis in the Supreme
    Court's decision in Williams v. Rhodes, 
    393 U.S. 23
     (1968),
    the panel examined whether the election laws created
    invidious distinctions or classifications. Patriot Party I, 95
    F.2d at 269 (citing Williams, 
    393 U.S. at 30
    ). The panel
    delineated its task as follows: "we must measure the totality
    of the burden that the laws place on the voting and
    associational rights of political parties and individual voters
    against the justifications that the State offers to support
    the law." 
    Id.
     (citing Williams, 
    393 U.S. at 34
    ). Applying this
    analysis, the panel concluded that "Pennsylvania's decision
    to ban cross-nomination by minor parties and to allow
    cross-nomination by major parties constitutes the type of
    ``invidious discrimination' prohibited by the Fourteenth
    Amendment." 
    Id.
     The panel noted that, by treating minor
    and major parties differently, the statutes burdened both
    minor parties and the voters that support them. 
    Id.
     The
    panel reiterated its earlier conclusion that, in the face of
    these unequal burdens, the Department had offered no
    compelling justifications. 
    Id.
     ("Pennsylvania imposes these
    unequal burdens on the right to vote and the right to
    associate without protecting any significant countervailing
    state interest.").
    In Timmons, the Supreme Court upheld Minnesota laws
    that imposed a general ban on fusion candidacies. The
    Court applied the same test that the panel had applied in
    Patriot Party I but concluded that the Minnesota laws did
    not violate the right to freedom of association. Assessing
    the burdens placed on minor political parties' associational
    rights, the Court rejected the argument that a severe
    burden was imposed by the fact that a party might be
    prevented from nominating a particular individual as its
    standard bearer. Timmons, 
    117 S. Ct. at 1370
     ("That a
    particular individual may not appear on the ballot as a
    particular party's candidate does not severely burden that
    8
    party's association rights."). The Court then rejected an
    argument that the fusion ban imposed a severe burden on
    minor parties' attempts to organize or develop political
    alliances. 
    Id. at 1371
     ("Minnesota has not directly
    precluded minor political parties from developing and
    organizing. . . . Nor has Minnesota excluded a particular
    group of citizens, or a political party, from participation in
    the election process."). In sum, the Court concluded the
    burdens on associational rights imposed by the fusion ban
    "--though not trivial--are not severe." 
    Id. at 1372
    .
    Having determined that the burdens were not severe, the
    Court proceeded to conduct a "less exacting review," in
    which "a State's ``important regulatory interests' will usually
    be enough to justify ``reasonable, nondiscriminatory
    restrictions.' " 
    Id. at 1370
     (quoting Burdick v. Takushi, 
    504 U.S. 428
    , 434 (1992) (internal quote marks omitted)). The
    Court reasoned that "the State's asserted regulatory
    interests need only be ``sufficiently weighty to justify the
    limitation' imposed on the [minor party's] rights." Id. at
    1372 (quoting Norman v. Reed, 
    502 U.S. 279
    , 288-89
    (1992)). Although the Court declined to consider
    Minnesota's alleged interest in "avoiding voter confusion,"
    
    id.
     at 1375 n.13, the Court concluded that the burdens
    imposed by the Minnesota's fusion ban on minor parties'
    associational rights were "justified by ``correspondingly
    weighty' valid state interests in ballot integrity and political
    stability." Id. at 1375.
    III. The Rule 60(b)(6) Motion
    As a preliminary matter, we must determine if the
    District Court properly denied the Department's Fed. R.
    Civ. P. 60(b)(6) motion for relief from judgment filed in
    Eshenbaugh's case.6 The panel in Patriot Party II affirmed
    the District Court's denial of the motion. We agree.
    We review a district court's denial of a Rule 60(b) motion
    for abuse of discretion. Central W. Rental Co. v. Horizon
    _________________________________________________________________
    6. The Department moved for relief from judgment under Rule 60(b)(4)
    and (6), but on appeal, they have abandoned the former, opting only for
    relief under Rule 60(b)(6).
    9
    Leasing, 
    967 F.2d 832
    , 836 (3d Cir. 1992). An abuse of
    discretion may be found when "the district court's decision
    rests upon a clearly erroneous finding of fact, an errant
    conclusion of law or an improper application of law to fact."
    International Union, UAW v. Mack Trucks, Inc., 
    820 F.2d 91
    ,
    95 (3d Cir. 1987).
    Relief under Rule 60(b)(6) "is available only in cases
    evidencing extraordinary circumstances." Martinez-McBean
    v. Government of Virgin Islands, 
    562 F.2d 908
    , 911 (3d Cir.
    1977) (quoting Stradley v. Cortez, 
    518 F.2d 488
    , 493 (3d
    Cir. 1975)). Furthermore, "[i]ntervening developments in the
    law by themselves rarely constitute the extraordinary
    circumstances required for relief under Rule 60(b)(6)."
    Agostini v. Felton, 
    117 S. Ct. 1997
    , 2018 (1997). As we will
    discuss below, the Supreme Court's decision in Timmons
    did not overrule the holding of the Patriot Party I panel that
    the Pennsylvania statutes at issue violate the Equal
    Protection Clause. Therefore, as the panel in Patriot Party II
    recognized, no extraordinary circumstances exist that
    would justify granting the Department's motion under Rule
    60(b)(6).
    Furthermore, to the extent that the Department is
    attempting to use its Rule 60(b)(6) motion as a means of
    seeking review of our decision in Patriot Party I, a Rule
    60(b)(6) motion may not be used as a substitute for an
    appeal. Martinez-McBean, 
    562 F.2d at 911
    . The Department
    chose not to petition for certiorari in the Eshenbaugh case
    even though it was on notice that the Timmons case was
    then pending before the Supreme Court. Indeed, a petition
    for certiorari might have obviated the need for this en banc
    review. The Department cannot attempt to second-guess
    that decision now with its Rule 60(b)(6) motion.
    For the above stated reasons, we find no abuse of
    discretion in the District Court's denial of the Rule 60(b)
    motion. The District Court properly concluded that the
    outcome in Eshenbaugh's case (No. 97-3359) could not be
    reopened for further consideration.
    IV. The Equal Protection Claim
    We turn now to the Patriot Party's motion for summary
    judgment in Childress's case (No. 96-3677), the granting of
    10
    which was affirmed by the panel in Patriot Party II. The
    granting of summary judgment by a district court is subject
    to plenary review. American Med. Imaging Corp. v. St. Paul
    Fire & Marine Ins. Co., 
    949 F.2d 690
    , 692 (3d Cir. 1991).
    The primary issue before us is whether the Patriot Party's
    equal protection claim is still viable after Timmons.7 Nothing
    in the Timmons opinion itself weakens the equal protection
    analysis of Patriot Party I, because no equal protection
    claim was asserted or considered by the Court in Timmons.
    The statutory scheme in Timmons differs from the
    Pennsylvania scheme in a manner crucial for the equal
    protection analysis. Timmons involved an across-the-board
    ban on fusion by both major and minor parties. In contrast,
    the Pennsylvania statutes involve a ban on cross-
    nomination that facially discriminates against minor parties
    by allowing major parties, but not minor parties, to cross-
    nominate in certain circumstances. The Supreme Court in
    Timmons did not hold that states can treat minor parties in
    a discriminatory way. Indeed, in discussing the test for
    deciding whether state election laws violate First and
    _________________________________________________________________
    7. We have chosen not to address whether the Supreme Court's opinion
    in Timmons eviscerates the associational rights analysis in Patriot Party
    I. In our current opinion, we hold only that 25 Pa. Stat. Ann. SS 2936(e)
    and 2911(e)(5) are unconstitutional because they violate a minor party's
    right to equal protection of the laws. Some degree of the associational
    rights analysis in Patriot Party I may remain viable because the
    Pennsylvania laws, in contrast to the Minnesota laws in Timmons,
    facially discriminate between major and minor parties, thus exacerbating
    the burdens imposed on minor parties. Because, however, our equal
    protection analysis is directed at the impact of this same discriminatory
    language, we do not go on to examine it as it applies to the right to
    freedom of association.
    Nevertheless, to the extent that it can be suggested that the
    associational rights analysis in Patriot Party I may have state-wide or
    circuit-wide implications for election processes, see Patriot Party I, 
    95 F.3d at 272
     (Greenberg, J., dissenting) (arguing that the majority's
    approach in Patriot Party I "leads to the conclusion that Pennsylvania
    (and the other jurisdictions in this circuit) must permit cross-filing in
    all
    elections"), we note that the Timmons decision, in ruling that a generally
    applicable anti-fusion law does not unconstitutionally infringe on
    associational rights, appears indeed to foreclose such a suggestion.
    11
    Fourteenth Amendment associational rights, the Court
    wrote:
    Regulations imposing severe burdens on plaintiffs'
    rights must be narrowly tailored and advance a
    compelling state interest. Lesser burdens, however,
    trigger less exacting review, and a State's " ``important
    regulatory interests' " will usually be enough to justify
    " ``reasonable, nondiscriminatory restrictions.' "
    Timmons, 117 S. Ct. at 1370 (emphasis added). Thus, even
    though the Court held that the burdens posed by fusion
    bans on parties and voters are not severe, the Court still
    maintained a requirement that the restrictions be
    reasonable and nondiscriminatory. Because the
    Pennsylvania law permits fusion by major parties, but
    prohibits fusion by minor parties, it is, on its face,
    discriminatory.8
    Moreover, the Court in Timmons did not overrule in any
    way its decision in Williams v. Rhodes, 
    393 U.S. 23
     (1968),
    on which the Patriot Party I panel relied in its equal
    protection analysis. Rather, the Court cited Williams
    favorably. See Timmons, 
    117 S. Ct. at
    1374 (citing Williams
    for the proposition that the State interest in the stability of
    its political system "does not permit a State to completely
    insulate the two-party system from minor parties' or
    independent candidates' competition and influence").
    In Williams, the Supreme Court stated at the outset:
    It is true that this Court has firmly established the
    principle that the Equal Protection Clause does not
    make every minor difference in the application of laws
    to different groups a violation of our Constitution. But
    _________________________________________________________________
    8. An argument could be made that the Court in Timmons did in fact give
    states permission to treat minor parties differently. For example, the
    Court wrote that "the States' interest permits them to enact reasonable
    regulations that may, in practice, favor the traditional two party
    system."
    Timmons, 
    117 S. Ct. at 1374
    . This argument is disposed of, however, by
    the recognition that there is a difference between regulations that "in
    practice" favor a two party system and those that on their face
    discriminate between major and minor parties. The Pennsylvania
    statutes discriminate on their face between major and minor parties.
    12
    we have also held many times that ``invidious'
    distinctions cannot be enacted without a violation of
    the Equal Protection Clause.
    Williams, 
    393 U.S. at 30
    . The Court went on to define the
    applicable test: "In determining whether or not a state law
    violates the Equal Protection Clause, we must consider the
    facts and circumstances behind the law, the interests
    which the State claims to be protecting, and the interests of
    those who are disadvantaged by the classification." Id.9
    As the panel in Patriot Party I explained,"[i]n Williams,
    Ohio election laws made it virtually impossible for new or
    small political parties to be placed on the state ballot for
    the selection of presidential and vice presidential
    candidates." Patriot Party I, 
    95 F.3d at
    268 (citing Williams,
    
    393 U.S. at 24
    ). "Thus, the challenged laws violated the
    constitutional guarantee of equal protection because they
    ``[gave] the two old, established parties a decided advantage
    over any new parties struggling for existence and . . .
    place[d] substantially unequal burdens on both the right to
    vote and the right to associate.' " 
    Id.
     (quoting Williams, 
    393 U.S. at 24
    ). The panel in Patriot Party I acknowledged that
    "[t]he restriction in Williams, which prevented minor parties
    from appearing on the ballot, was undoubtedly a more
    severe burden on the rights of minor parties than the
    restriction imposed by the state election laws in this case."
    Id. at 269. Nonetheless, the panel held that "Pennsylvania's
    decision to ban cross-nomination by minor parties and to
    allow cross-nomination by major parties constitutes the
    type of ``invidious discrimination' prohibited by the
    Fourteenth Amendment." Id. We reaffirm this holding for
    the reasons set forth below.
    _________________________________________________________________
    9. In Patriot Party I, after reciting the Williams test, the panel wrote
    that
    "our analysis of the Patriot Party's equal protection claim is similar in
    many respects to the balancing test that we applied to its free
    association claim." Patriot Party I, 
    95 F.3d at 269
    . From this, the
    Department tries to argue that if the free association claim is vitiated
    by
    Timmons, then a fortiori the equal protection claim is also vitiated. This
    argument ignores, however, the fact that the equal protection analysis is
    sufficiently different from the free association analysis so as to stand
    on
    its own.
    13
    The first question to be addressed in an equal protection
    challenge is what level of scrutiny we should apply in
    reviewing the challenged laws. In order to make this
    decision, we must assess the impact of the laws on the
    rights at stake. See, e.g., Illinois State Bd. of Elections v.
    Socialist Workers Party, 
    440 U.S. 173
    , 184 (1979) (holding
    that "[r]estrictions on access to the ballot burden two
    distinct and fundamental rights" and that "a State must
    establish that its classification is necessary to serve a
    compelling interest"); Bullock v. Carter, 
    405 U.S. 134
    , 142-
    44 (1972) (concluding that a "Texas filing-fee scheme has a
    real and appreciable impact on the exercise of the
    franchise" and that the laws must therefore be " ``closely
    scrutinized' and found reasonably necessary to the
    accomplishment of legitimate state objectives in order to
    pass constitutional muster"). In Williams, for example, the
    Court began its analysis by identifying the rights burdened
    by the challenged state laws -- "the right of individuals to
    associate for the advancement of political beliefs, and the
    right of qualified voters, regardless of their political
    persuasion, to cast their votes effectively." Williams, 
    393 U.S. at 30
    . The Court reasoned that the laws in question
    placed "substantially unequal burdens on both the right to
    vote and the right to associate." 
    Id. at 31
    . The Court stated:
    "In determining whether the State has power to place such
    unequal burdens on minority groups where rights of this
    kind are at stake, the decisions of this Court have
    consistently held that ``only a compelling state interest in
    the regulation of a subject within the State's constitutional
    power to regulate can justify limiting First Amendment
    freedoms.' " 
    Id.
     (citing NAACP v. Button, 
    371 U.S. 415
    , 438
    (1963)).
    In the instant case, therefore, we must identify the
    burdens imposed by the Pennsylvania laws. In Patriot Party
    I, the panel, in its equal protection analysis, identified the
    following burdens: First, the ban on minor party cross-
    nomination "burdens individuals who support a minor
    party's platform because it forces them to choose among
    three unsatisfactory alternatives: ``wasting' a vote on a
    minor party candidate with little chance of winning, voting
    for a second-choice major party candidate, and not voting
    at all." Patriot Party I, 
    95 F.3d at 269
    . Second, the ban
    14
    burdens the political parties themselves because they "may
    prohibit a minor party from nominating its best candidate
    and from forming a critical type of consensual political
    alliance that would help it build support in the community.
    Thus, the challenged laws help to entrench the decided
    organizational advantage that the major parties hold over
    new parties struggling for existence." 
    Id.
    The Court in Timmons addressed similar burdens (in its
    associational rights analysis) in the context of a general ban
    on fusion and concluded that the burdens, although not
    trivial, were not severe. Timmons, 
    117 S. Ct. at 1370-72
    .
    The Court then proceeded to apply not strict scrutiny, but
    an intermediate level of scrutiny, in which "the State's
    asserted regulatory interests need only be ``sufficiently
    weighty to justify the limitation' imposed on the[minor
    party's] rights." 
    Id.
     at 1372 (citing Norman, 
    502 U.S. at
    288-
    89). Under this standard, the Court indicated that it would
    not "require elaborate, empirical verifications of the
    weightiness of the State's asserted justifications." 
    Id.
     (citing
    Munro v. Socialist Workers Party, 
    479 U.S. 189
    , 195-96
    (1986)).
    If we assume, and we believe we must, that the above
    stated burdens require the same level of scrutiny in an
    equal protection analysis that they do in an associational
    rights analysis, then we must now apply an intermediate
    level of scrutiny. In doing so, we will recognize, however,
    that because of the discriminatory aspects of the
    Pennsylvania statutes, the burdens imposed by them on
    voters and on political parties are more onerous than those
    involved in Timmons. In Timmons, the asserted burdens
    existed in the context of an across-the-board ban on fusion.
    Timmons, 117 S. Ct. at 1370 (noting that the Minnesota
    ban, "which applies to major and minor parties alike,
    simply precludes one party's candidate from appearing on
    the ballot, as that party's candidate, if already nominated
    by another party"). In the instant case, the burden is
    exacerbated because Pennsylvania has allowed the major
    parties to cross-nominate but has disallowed minor parties
    from doing the same. As the panel in Patriot Party I wrote:
    The ill effects of these laws are further magnified when
    the major parties elect to cross-nominate the same
    15
    candidate, as they did in the school board election at
    issue. When the major parties cross-nominate a
    candidate, a minor party candidate must fight an
    uphill election battle against the combined strength of
    two well-organized and established major parties
    without even the prospect of forming its own ballots
    alliances. If a vote is "wasted" when it is cast for a
    minor party candidate running against two major party
    candidates, it is a fortiori wasted when the major
    parties unite behind one candidate.
    Patriot Party I, 
    95 F.3d at 269
    .
    Using an intermediate level of scrutiny, our next step is
    to weigh, against the burdens imposed, any plausible
    justification the State has advanced for imposing unequal
    burdens on major and minor parties. Cf. Romer v. Evans,
    
    517 U.S. 620
    , 632 (1996) ("[E]ven in the ordinary equal
    protection case calling for the most deferential of standards,
    we insist on knowing the relation between the classification
    adopted and the object to be attained."). Wefind no such
    justification. Although the Department has identified
    justifications, such as preventing ballot manipulation and
    preserving political stability, that were recognized in
    Timmons to be legitimate state interests, see Timmons, 
    117 S.Ct. at 1373-74
    , the Department has not demonstrated
    how these interests are served by the unequal burden
    imposed here. Indeed, the Department acknowledges in its
    brief that it has no idea why the Pennsylvania legislature
    chose to allow major party cross-nomination in thefive
    local elections at issue here, but denied the same
    opportunity to minor parties. Department Br. at 17. 10
    _________________________________________________________________
    10. The Commonwealth of Pennsylvania has also declined to assert any
    interests to justify this discrimination. We note that, in both
    Eshenbaugh's and Childress's case, the District Court served the
    requisite notice on the Attorney General of Pennsylvania, advising that
    the cases challenged the state laws in question, thus giving the
    Commonwealth an opportunity to intervene to defend them. See 28
    U.S.C. S 2403(b). In addition, the Attorney General was invited by this
    Court to submit an amicus brief to supplement the Department's defense
    of the statutory scheme in this appeal. In each instance, including this
    appeal, the Attorney General chose not to intervene or defend the
    constitutionality of the challenged laws.
    16
    As the panel in Patriot Party I explained, "Pennsylvania
    imposes these unequal burdens on the right to vote and the
    right to associate without protecting any significant
    countervailing state interest." Patriot Party I, 
    95 F.3d at 269
    . In the context of the equal protection claim,
    Pennsylvania has not asserted any regulatory interests that
    are "sufficiently weighty" to justify the discriminatory
    treatment of major and minor parties.
    When we consider constitutional challenges to specific
    provisions of a State's election laws, we cannot speculate
    about possible justifications for those provisions. The court
    "must identify and evaluate the precise interests put
    forward by the State as justifications for the burden
    imposed by its rule." Anderson, 
    460 U.S. at 789
    ; cf.
    Edenfield v. Fane, 
    507 U.S. 761
    , 768 (1993) (observing that,
    unlike rational basis review, the intermediate standard of
    review applicable in commercial speech cases "does not
    permit [the Court] to supplant the precise interests put
    forward by the State with other suppositions").
    Furthermore, our analysis is confined to the four state
    interests asserted by the Department to the District Court.11
    _________________________________________________________________
    11. At oral argument, the Department asserted, for the first time, that
    allowing major party cross-nomination for the five local offices served a
    state interest in making those offices nonpartisan or less partisan. The
    Department's failure to raise this argument in its appeal briefs, as well
    as before the District Court, would alone be fatal for the argument. "An
    issue is waived unless a party raises it in its opening brief, and for
    those
    purposes ``a passing reference to an issue . . . will not suffice to bring
    that issue before this court.' " Laborers' Int'l Union v. Foster Wheeler
    Corp., 
    26 F.3d 375
    , 398 (3d Cir. 1994) (quoting Simmons v. City of
    Philadelphia, 
    947 F.2d 1042
    , 1066 (3d Cir. 1991) (plurality opinion)
    (Becker, J.)). Even if we were to consider this state interest, however,
    it
    does not persuade us, because the Department fails to explain why the
    interest requires or allows for discrimination against minor parties.
    In addition, the Department, following the dissent in Patriot Party I,
    now tries to assert a state interest in ensuring that partisan voters who
    wish to vote for a "pure" Democrat or Republican know at the time of the
    major party primary whether the major party candidate will accept a
    minor party cross-nomination. The Department, however, in arguing this
    case before the Patriot Party I panel, "never asserted that the
    Commonwealth had any such interest in protecting partisan voters, even
    17
    "It is well established that failure to raise an issue in the
    district court constitutes a waiver of the argument."
    Brenner v. Local 514, United Bhd. of Carpenters, 
    927 F.2d 1283
    , 1298 (3d Cir. 1991).
    As summarized in Patriot Party I, the Department
    advanced four state interests to the District Court: "(1)
    preventing ``sore loser' candidacies; (2) preventing individual
    candidates from ``monopolizing' the ballot and causing voter
    confusion; (3) preventing a candidate from ``bleed[ing] off
    votes of independent voters to bolster his or her major party
    endorsement'; and (4) encouraging new candidates to run
    as independents." Patriot Party I, 
    95 F.3d at 264
    . With
    respect to all four purported state interests, no effort is
    made by the state to show why those interests justify
    permitting the major parties to cross-nominate, while
    forbidding the minor parties from doing so. While such
    interests may be sufficiently weighty in light of Timmons to
    justify a general ban on fusion, they are not sufficiently
    weighty to justify a ban that discriminates between major
    and minor parties.
    First, the sore loser justification is insufficient to satisfy
    the applicable level of intermediate scrutiny. As the panel
    explained in Patriot Party I, sore losers"are candidates who
    lose a major party primary but insist on running on a
    minor party ticket in the general election." 
    Id. at 265
    .
    Another panel of this court recently recognized that sore
    loser and disaffiliation laws have been upheld. Council of
    Alternative Political Parties v. Hooks, 
    121 F.3d 876
    , 881 (3d
    Cir. 1997) (citing Storer v. Brown, 
    415 U.S. 724
     (1974)).12
    _________________________________________________________________
    after it was suggested as a possibility at oral argument." Patriot Party
    I,
    
    95 F.3d at
    264 n.6. The panel concluded that, "[b]ecause the
    Department has shown no interest in pursuing this line of argument, we
    will not dwell on it in this opinion." 
    Id.
     Even if we were to consider the
    Department's latest reversal of position, we would not find this state
    interest persuasive. Once again, the Department does not explain why a
    voter's alleged interest in knowing which "pure" candidates will refuse a
    cross-nomination justifies discrimination against minor parties.
    12. The Court in Timmons relied on Storer, in which the Court "upheld
    a California statute that denied ballot positions to independent
    18
    The panel in Hooks, however, rejected New Jersey's attempt
    to justify early filing deadlines on the grounds that they
    prevented sore loser candidacies, stating that "they are
    both too broad . . . and too narrow." 
    Id.
     (citing Anderson,
    
    460 U.S. at
    805 & n.31). Similarly, the Pennsylvania laws
    at issue here cannot be justified as preventing sore loser
    candidacies because they are too broad and too narrow. As
    the panel noted in Patriot Party I, the Pennsylvania laws
    only "prevent sore loser candidacies insofar as they prevent
    a candidate who failed to win either major party primary
    from running as a minor party candidate in the general
    election." Patriot Party I, 
    95 F.3d at 165
    . The laws are too
    broad, however, because they bar a third party from
    nominating a candidate such as Ms. Childress even though
    she did not lose either primary race and was thus not a
    sore loser. They are too narrow because they do not prevent
    candidates like Mr. Eshenbaugh from continuing on as the
    Democratic candidate even though he had lost the
    Republican primary.
    Next, the Department asserts a state interest in
    preventing voter confusion and ballot clogging caused by
    _________________________________________________________________
    candidates who had voted in the immediately preceding primary
    elections or had a registered party affiliation at any time during the
    year
    before the same primary elections." Timmons, 117 S. Ct. at 1374 (citing
    Storer, 
    415 U.S. at 728
    ). The disaffiliation provision in Storer, however,
    differs from the Pennsylvania laws in at least one crucial respect. The
    Court in Timmons noted that in Storer , the challenged law "did not
    discriminate against independent candidates." Timmons, 
    117 S. Ct. at
    1374 (citing Storer, 
    415 U.S. at 734
    ). Indeed, in describing the
    California
    statute, the Court in Storer observed that, apart from the fact that an
    independent candidate needed to "qualify for the ballot by demonstrating
    substantial public support" in some other way than standing for a
    primary election, "the qualifications required of the independent
    candidate are very similar to, or identical with, those imposed on party
    candidates." Storer, 
    415 U.S. at 733
    .
    Similarly, the Court in Timmons quoted from its decision in Burdick v.
    Takushi, in saying that " ``we have repeatedly upheld reasonable,
    politically neutral regulations that have the effect of channeling
    expressive activit[ies] at the polls.' " Timmons, 
    117 S. Ct. at 1375
    (quoting Burdick, 
    504 U.S. at 437-38
    ). Because the Pennsylvania laws
    discriminate against minor parties, they are not politically neutral.
    19
    the monopolization of the ballot by minor candidates and
    the proliferation of parties. The Department, however, does
    not explain why minor parties can be prevented from
    monopolizing the ballot and causing voter confusion when
    the major parties are allowed to do so through major party
    cross-nomination. In upholding Minnesota's general fusion
    ban, the Court in Timmons specifically disclaimed reliance
    on the state's alleged interest in avoiding voter confusion.
    Timmons, 117 S. Ct. at 1375 n.13. This asserted interest
    carries even less weight here. Indeed, the fact that the
    Pennsylvania laws discriminate between major and minor
    parties undermines this asserted interest, because major
    party cross-nomination (which is allowed) would seem to
    pose just as large a risk of voter confusion. Moreover, as
    the panel observed in Patriot Party I, "the Department has
    presented no evidence to indicate that fusion is likely to
    produce a crippling proliferation of minor parties. . . .
    Furthermore, Pennsylvania retains the authority to set
    reasonable threshold requirements for parties seeking
    admission to the ballot." Patriot Party I, 
    95 F.3d at 266
    .
    The Department also asserts that allowing cross-
    nomination by minor candidates will allow a candidate to
    bleed off votes of independent voters to bolster his or her
    major party endorsement. This state interest was not raised
    in the Timmons case, and we reject it here. As the panel
    pointed out in Patriot Party I, "[c]ross nomination will not
    increase a major party's share of minor party votes unless
    the minor party voluntarily nominates the major party
    candidate as its own." 
    Id. at 267
    . Indeed, allowing the
    major parties to cross-nominate may actually serve to bleed
    off minor party votes, as an individual who supports a
    minor party's platform but does not want to waste a vote on
    a minor candidate may cast a ballot instead on a candidate
    who has been nominated by both major parties. Once
    again, the fact that major parties are allowed to cross-
    nominate undermines this proffered state interest.
    Finally, the argument that the laws serve an interest in
    encouraging new candidates to run as independents is also
    undermined by the fact that major parties may cross-
    nominate. "If the Commonwealth bans cross-nomination by
    minor parties to encourage new candidates for office, it
    20
    should logically prohibit cross-nomination by major parties
    for the same reason. An across-the-board ban on cross-
    nomination would require the major parties to nominate
    their own candidates, thus increasing the number of
    candidates in the field and the level of electoral
    competition." 
    Id.
     If anything, the current statutory scheme
    may discourage independent candidates. A three-way race
    against two major party candidates would be formidable
    enough for an independent candidate. An independent
    candidate would face an even greater challenge running
    against a candidate nominated by both major parties.
    In sum, we find unpersuasive each of the interests that
    the Department has offered in support of Pennsylvania's
    discriminatory statutory scheme. The fact that
    Pennsylvania allows major parties to engage in cross-
    nomination in certain local elections, but forbids minor
    parties from so doing, constitutes "invidious discrimination"
    in violation of minor parties' right to equal protection of the
    laws. The facially discriminatory nature of the laws imposes
    a heavier burden on minor parties than a general fusion
    ban of the type considered in Timmons. Moreover, unlike
    the Timmons case, the Department in this case has offered
    no "important" or "sufficiently weighty" state interests that
    justify, even under intermediate scrutiny, the
    discriminatory burdens imposed on minor parties.
    V. Conclusion
    We reaffirm the holding of the Patriot Party I panel that
    25 Pa. Stat. Ann. SS 2936(e) and 2911(e)(5) violate the
    Patriot Party's right to equal protection of the laws by
    banning cross-nomination of candidates by minor parties in
    certain local elections. Therefore, we will affirm the orders
    of the District Court denying Rule 60(b) relief in
    Eshenbaugh's case (No. 97-3359) and granting summary
    judgment for the Patriot Party in Childress's case (No. 96-
    3677). The injunction of the District Court, as it appears in
    Paragraph 4 of the District Court's Order of December 9,
    1996, is affirmed as written. However, because we affirm
    only on equal protection grounds, we will remand the
    Childress case with instructions that the District Court
    delete from Paragraph 3 of that Order the phrase"to free
    21
    association under the First and Fourteenth Amendments of
    the Constitution, and".13
    _________________________________________________________________
    13. Paragraphs 3 and 4 of the District Court Order of December 9, 1996
    state:
    3. Article IX, Sections 951(e)(5) and 976(e) of the Act of June 3, 1937,
    P.L. 1933, Pennsylvania Election Code, (the code) 25 P.S. SS2911(e)(5)
    and 2936(e) (Sections 2911(e)(5) and 2936(e)) are declared to be an
    unconstitutional burden on the right of plaintiff, the Patriot Party of
    Allegheny County, to free association under the First and Fourteenth
    Amendments of the Constitution, and to equal protection of the law
    under the Fourteenth Amendment to the Constitution insofar as they
    prohibit plaintiff, a minor political party, from nominating any person as
    a Patriot Party candidate for any office referred to in Section 2870(f) of
    the Code, 25 P.S. S2870(f), because such person is also a major party
    candidate for that office.
    4. Defendants are hereby enjoined from enforcing the provisions of
    Sections 2911(e)(5) and 2963(e) of the Code to prevent a minor political
    party from nominating a candidate for any office referred to in Section
    2870(f) of the Code because that candidate files a petition for a major
    party nomination to that office or is nominated as a candidate for that
    office in the primary election of a major party.
    22
    McKEE, Circuit Judge, concurring:
    I concur fully with the majority's holding that the
    Supreme Court's decision in Timmons v. Twin Cities Area
    New Party does not affect this Court's review of
    Pennsylvania's discriminatory anti-fusion laws under the
    Equal Protection Clause. I further concur in the majority's
    conclusion that the anti-fusion laws at issue here violate
    the Equal Protection Clause. I believe, however, that, under
    the Equal Protection Clause, when a law both discriminates
    and burdens a fundamental right, strict scrutiny, rather
    than intermediate scrutiny, applies. See Clark v. Jeter, 
    486 U.S. 456
    , 461 (1988) ("Classifications based on race or
    national origin and classifications affecting fundamental
    rights are given the most exacting scrutiny.") (internal
    quotations omitted); Nordlinger v. Hahn, 
    505 U.S. 1
    , 10
    (1992) (discriminatory statutes that interfere with a
    fundamental right are subject to strict judicial scrutiny);
    Kadrmas v. Dickinson Public Schools, 
    487 U.S. 450
    , 457-58
    (1988) (same).
    The classification here must be narrowly tailored to serve
    a compelling State interest to survive an Equal Protection
    challenge. Indeed, the Supreme Court repeatedly has
    applied precisely this standard to review ballot restrictions
    which disparately infringe upon First Amendment
    associational rights. See, e.g., William v. Rhodes, 
    393 U.S. 23
    , 31 (1968) (In reviewing a ballot restriction applicable
    only to minor parties, the Court stated: "In determining
    whether the State has power to place such unequal
    burdens on a minority group where [associational rights]
    are at stake, the decisions of this Court have consistently
    held that ``only a compelling state interest in the regulation
    of a subject within the State's constitutional power to
    regulate can justify limiting First Amendment freedoms.' ")
    (quoting NAACP v. Button, 
    371 U.S. 415
     (1963)); American
    Party of Texas v. White, 
    415 U.S. 767
    , 780 (1974) ("We
    agree with the District Court that whether the qualifications
    for ballot position are viewed as substantial burdens on the
    right to associate or as discriminations against parties not
    polling 2% of the last election vote, their validity depends
    upon whether they are necessary to further compelling
    state interests," which cannot be served "equally well in
    23
    significantly less burdensome ways."); Storer v. Brown, 
    415 U.S. 724
    , 729 (1974) (applying Williams v. Rhodes strict
    scrutiny to review ballot restrictions on independent
    candidates); Illinois State Bd. of Elec. v. Socialist Workers,
    
    440 U.S. 173
    , 184-86 (1979) (applying strict scrutiny
    standard to review disparate nominating requirements); see
    also, e.g., Harper v. Virginia State Bd. of Elec., 
    383 U.S. 663
    , 670 (1966) ("close scrutiny" applied to poll tax, which
    discriminates on the basis of wealth, because fundamental
    right infringed); Bullock v. Carter, 
    405 U.S. 134
    , 142-44
    (1972) (applying Harper standard to filing fee system).
    As the Supreme Court recognized in Timmons, anti-fusion
    laws, like the ones at issue here, burden First and
    Fourteenth Amendment associational rights. Timmons, 
    520 U.S. 351
    , 357-58 (1997); see also Munro v. Socialist
    Workers Party, 
    479 U.S. 189
    , 193 (1986) (recognizing that
    balloting and eligibility requirements for minority party
    candidates impinge fundamental associational rights);
    Anderson v. Celebrezze, 
    460 U.S. 780
    , 786-87 (1983)
    (same); Williams, 
    393 U.S. at 30-31
     (same). In determining
    whether the burdens actually violated the First
    Amendment, the Court stated:
    Regulations imposing severe burdens on plaintiffs'
    rights must be narrowly tailored and advance a
    compelling state interest. Lesser burdens, however,
    trigger less exacting review, and a State's ``important
    regulatory interests' will usually be enough to justify
    ``reasonable, nondiscriminatory restrictions.'
    Timmons, 
    520 U.S. at 358
     (emphasis added). Thus, the
    Court's decision in Timmons to apply a less exacting
    standard of review was premised on the fact that the
    Minnesota anti-fusion laws were nondiscriminatory. That is
    not our case: Pennsylvania's anti-fusion laws discriminate
    between major parties and minor parties. Therefore, even
    assuming that the standard used in Timmons applies in the
    First Amendment context, I doubt its application in the
    Equal Protection context.
    Thus, because the Pennsylvania anti-fusion laws are both
    discriminatory and burden a fundamental right, I believe
    that under established Equal Protection doctrine we must
    24
    strictly scrutinize Pennsylvania's discriminatory treatment
    of minority party candidates under the anti-fusion laws.
    Because I agree with the majority's conclusion that the
    ballot restrictions do not pass constitutional muster even
    under the less exacting scrutiny applied by the majority, it
    necessarily follows that they do not pass muster under the
    heightened scrutiny standard that I advocate. Accordingly,
    I concur in the majority's result.
    25
    GREENBERG, Circuit Judge, concurring and dissenting:
    I concur and join in the court's opinion denying the
    Department's motion under Fed. R. Civ. P. 60(b)(6). I add
    the following comments, however, with regard to that
    motion. By the time of our decision in Patriot Party I on
    September 9, 1996, the Supreme Court had granted
    certiorari in Twin Cities Area New Party v. McKenna,, 
    73 F.3d 196
     (8th Cir. 1996). See McKenna v. Twin Cities Area
    New Party, 
    517 U.S. 1219
    , 
    116 S.Ct. 1846
     (1996). Thus,
    the Department had every reason to believe that the
    Supreme Court would review at least a portion of the theory
    underlying our opinion in Patriot Party I. Moreover, I
    dissented in Patriot Party I. See Patriot Party v. Allegheny
    County Dep't of Elections, 
    95 F.3d 253
    , 270 (3d Cir. 1996).
    Nevertheless, in the face of these encouraging signs, the
    Department chose not to seek certiorari in Patriot Party I.
    Therefore, it would be difficult to justify granting the Rule
    60(b)(6) motion. Moreover, even though this case has
    ramifications going beyond the interests of the parties, in
    view of the court's decision in No. 96-3677, Childress's
    case, with respect to the equal protection claim, the
    Department cannot obtain effective relief on the merits in
    No. 97-3359.
    While I join in the result in No. 96-3677, with respect to
    Childress, the opinion plainly goes too far and thus I must
    dissent from it. In dissenting in Patriot Party I, I made the
    following point:
    I recognize that it reasonably could be argued that
    Pennsylvania could avoid the problem I identify by
    requiring minor parties to select their candidates prior
    to the primary election. Of course, such a condition
    would restrict the minor party's flexibility and would
    have problems of its own. In any event, the possibility
    that a minor party could designate its candidate before
    the major party primary election does not affect my
    analysis. Rather, I take this case as it has been
    presented by the parties to this appeal and on the
    basis on which the majority decides it, which is
    whether the Pennsylvania statutes are unconstitutional
    ``as applied in this case.' Thus, I do not address the
    possibility that the Pennsylvania statutes might be
    26
    unconstitutional if applied in a situation in which the
    minor party files its nominating papers before the
    primary for, even if they would be unconstitutional in
    that circumstance, they validly can be applied here.
    See Commonwealth v. The First School, 
    471 Pa. 471
    ,
    
    370 A.2d 702
    , 705-07 (1977). Here the Patriot Party
    nominated Eshenbaugh after the primary, and he
    accepted its nomination at that time, and both the
    district court and the majority adjudicated the case on
    that basis and so do I.
    Patriot Party I, 
    95 F.3d at 271
    .
    The circumstances I contemplated in Patriot Party I that
    might arise in fact came to pass in Childress's case
    because, as the majority points out, Childress "perfected
    her nomination as one of the Patriot Party's candidates by
    filing nomination papers with the Department" on May 16,
    1995, "before the municipal primary elections." Majority
    Op. at 5. Accordingly, the question for the court to resolve
    in No. 96-3677 should not be whether 25 Pa. Stat. Ann.
    SS 2936(e) and 2911(e)(5) are unconstitutional as violating a
    minor party's right to equal protection of the laws. Rather,
    the question should be whether the statutes are
    unconstitutional as violating a minor party's right to equal
    protection of the law when its candidate declares her intent
    to cross-file before a primary election. Indeed, the Patriot
    Party itself well understands this point because in its brief
    in No. 96-3677 it explains that "[t]he present case (Patriot
    II) was also filed as an ``as applied' challenge after the
    County refused to permit the Party [to] nominate another
    candidate (Barbara Childress) in the 1995 municipal
    election cycle." Br. at 5 (emphasis added).
    I will accept the result that the statutes in issue are
    unconstitutional when applied to a minor party candidate,
    such as Childress, cross-filing before the primaries,
    because a candidate by cross-filing before the primary
    election may seek both major parties' nominations. But
    sections 2936(e) and 2911(e)(5) surely are not
    unconstitutional if applied in circumstances paralleling
    those in Eshenbaugh's case in Patriot Party I, because there
    the candidate was seeking to cross-file at a time when the
    major parties had selected their candidates at the primaries
    27
    and thus could no longer nominate cross-filing candidates.
    It therefore follows that applying sections 2936(e) and
    2911(e)(5) only when a candidate seeks to cross-file after a
    primary treats a minor party exactly the same as the major
    parties. Consequently, there simply cannot be an equal
    protection problem in those circumstances, as the statutes
    do not place unequal burdens on minor and major parties.
    Thus, the Department need not demonstrate any interest to
    justify discriminatory treatment of major and minor parties,
    as there is no discriminatory treatment to justify.
    Accordingly, in declaring sections 2936(e) and 2911(e)(5)
    unconstitutional without regard for when the candidate
    cross-files, the majority goes too far.
    I close by making one more point. A court sometimes
    must declare a state statute unconstitutional. Nevertheless
    should we not, as a federal court, be restrained in taking
    such action? The Supreme Court of Pennsylvania in
    Commonwealth v. The First School, 
    370 A.2d 702
    , 705-07
    (Pa. 1977), made it clear that if a statute can be applied
    constitutionally in some situations then a court should so
    apply it. After all, 1 Pa. Cons. Stat. Ann. S 1925 (1995)
    (emphasis added) provides:
    The provisions of every statute shall be severable. If
    any provision of any statute or the application thereof to
    any person or circumstance is held invalid, the
    remainder of the statute, and the application of such
    provision to other persons or circumstances, shall not be
    affected thereby, unless the court finds that the valid
    provisions of the statute are so essentially and
    inseparably connected with, and so depend upon, the
    void provision or application, that it cannot be
    presumed the General Assembly would have enacted
    the remaining valid provisions without the void one; or
    unless the court finds that the remaining valid
    provisions, standing alone, are incomplete and are
    incapable of being executed in accordance with the
    legislative intent.
    We should follow First School and apply section 1925 here
    because it is clear that the statutes easily can be applied
    constitutionally to a minor party's cross-filing after the
    primary. Moreover, can anyone really believe that the
    28
    Legislature would not want sections 2936(e) and 2911(e)(5)
    applied to minor party candidates filing after the primary
    merely because they cannot be applied to those filing
    earlier? Surely, the Legislature would want the statutes
    applied so far as is possible.
    The majority indicates that "[b]ecause the Pennsylvania
    law permits fusion by major parties, but prohibits fusion by
    minor parties, it is, on its face, discriminatory." Maj. Op. at
    12. A proper respect for judicial restraint should lead us to
    the result that the discrimination be eliminated by allowing
    the minor parties to fuse their candidates with the major
    parties' candidates when the major parties' candidates can
    fuse with each other. Instead, the majority creates a new
    type of discrimination, as it allows a minor party to fuse its
    candidates with those of a major party when the major
    parties' candidates cannot fuse. Thus, I dissent.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    29