No.

In the Supreme Court of the United States

October Term 1999

In re: The Oral Petition of Annabelle C. Barkman requesting that the Bedford County Board 
of Elections be compelled to permit her to vote in the 1998 Primary Election as a 
non-partisan

Annabelle C. Barkman, Petitioner

On Petition for Writ of Certiorari to the    Supreme Court of Pennsylvania

Petition for Writ of Certiorari

Thomas Alan Linzey, Esq.
Counsel of Record
The Community Environmental Legal Defense    Fund (CELDF)
2859 Scotland Road
Shippensburg, Pennsylvania 17257
(717) 709-0457

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the Commonwealth of Pennsylvania’s closed primary elections, in combination with the state’s restrictive ballot access laws, foreclose any alternative means of access to the primary election ballot or participation in primary elections, for non-partisan voters, to the extent that these laws combine to violate the Voting, Equal Protection, and Associational constitutional rights of an individual registered to vote as a non-partisan?

2. Whether the effective disenfranchisement of over 671,500 registered voters, or ten percent of the registered voter population in Pennsylvania, by the combination of the closed primary system and restrictive ballot access laws unconstitutionally abridge the Fourteenth Amendment’s guarantee of Privileges and Immunities of a non-partisan registered voter who wishes to participate in the electoral system?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. The Petitioner’s Equal Protection and Due Process Rights Are Violated by Pennsylvania’s Statutory Scheme Which Unconstitutionally Burdens Her Participation in Primary Elections.

A. Pennsylvania’s Ballot Access Statutory Scheme Restricts Access to Participation in the Primary Elections.

B. The Difference Between Connecticut’s Ballot Access Law and Pennsylvania’s Restrictive Ballot Access Statutory Scheme Places a Greater Burden on the Appellant in the Instant Litigation Than was Placed on the Plaintiff in Nader, and Therefore the Constitutional Balancing Test Reveals a Violation of the Plaintiff’s Rights.

II. The Combination of the Effect of the Closed Primary System With Pennsylvania’s Regressive Ballot Access Laws Abridges One of Petitioner Barkman’s Privileges and Immunities - The Right to Participate in Government Guaranteed by the Fourteenth Amendment.

A. Petitioner Barkman’s Right to Participate in Government is a Constitutionally Protected Privilege and Immunity.

B. Pennsylvania’s Statutory Scheme Denies Barkman the Right to Participate in Government, Thus Violating Her Constitutionally Guaranteed Privileges and Immunities.

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983)

Baldwin v. Fish and Game Commission of Montana, et al., 436 U.S. 371 (1978)

Buckley v. Valeo, 424 U.S. 1 (1976)

Burson v. Freeman, 504 U.S. 191 (1992)

The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live- Stock Landing and Slaughterhouse Company, et al., 83 U.S. 395 (1 Wall. 36-130)(1872)

California Democratic Party v. Jones, 984 F. Supp. 1288 (E.D. CA 1997)

Corfield v. Coryell, 4 Wash. C.C. 371, Fed Cas. No. 3230 (1825)

Hague v. Committee for Industrial Organization, 307 U.S. 954 (1939)

In Re Kemmler, 136 U.S. 436 (1890)

MacDougall v. Green, 335 U.S. 288 (1948)

Madden v. Commonwealth of Kentucky, 309 U.S. 83 (1940)

Maxwell v. Dow, 176 U.S. 581 (1899)

Moore v. City of East Cleveland, 431 U.S. 494 (1977)

Nader v. Schaffer, 417 F. Supp. 837 (1976) (D. Conn),

summarily affirmed, 429 U.S. 989 (1976)

Palko v. State of Connecticut, 302 U.S. 319 (1937)

Reynolds v. Sims, 377 U.S. 533 (1964)

Saenz v. Roe, 119 S.Ct. 1518 (1999)

Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985)

Tashjian v. Republican Party of Connecticut,

479 U.S. 208 (1986)

Timmons v. Twin Cities Area New Party, 117 S.Ct. 1364 (1997)

Twining v. New Jersey, 211 U.S. 78 (1908)

United States v. Cruikshank, 92 U.S. 542 (1875)

Ward v. Maryland, 12 Wall. 418 (1871)

STATUTES

25 P.S. section 2812

25 P.S. section 2872.2 (a)

25 P.S. section 2911 (b)

CONSTITUTION

U.S. Const. art. IV, section 2

U.S. Const. art. IV, section 4

U.S. Const. amend. I

U.S. Const. amend. X

U.S. Const. amend. XII

U.S. Const. amend. XIV

U.S. Const. amend. XV

U.S. Const. amend. XIX

U.S. Const. amend. XXIV

U.S. Const. amend. XXVI

PETITION FOR A WRIT OF CERTIORARI

Annabelle C. Barkman Petitions for a Writ of Certiorari to review the judgment of the Supreme Court of Pennsylvania.

OPINIONS BELOW

The order of the Bedford County Court of Common Pleas, with a transcript of the oral proceedings in that Court, is unpublished and is reprinted in the Appendix at App.12 - App. 18. The opinion of the Pennsylvania Commonwealth Court is unpublished and is reprinted in the Appendix at App. 2 - App. 11. The per curiam order denying an appeal to the Pennsylvania Supreme Court is unpublished and reprinted in the Appendix at App.1.

JURISDICTION

The Pennsylvania Supreme Court entered its judgment on July 13, 1999. The jurisdiction of the United States Supreme Court is invoked pursuant to 28 U.S.C. section 1257 (a). Appellate jurisdiction of the Commonwealth Court of Pennsylvania from the Bedford County Court of Common Pleas was a matter of right and was invoked under 24 Pa.C.S.A. section 762. Discretionary jurisdiction in the Pennsylvania Supreme Court was sought under 42 Pa.C.S.A. section 724 (a).

Jurisdiction in this Court is invoked pursuant to 28 U.S.C. section 1257(a).

STATUTORY PROVISIONS INVOLVED

Section One of the Fourteenth Amendment to the United States Constitution reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section Two of Article IV of the United States Constitution reads that:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.

25 P.S. section 2812 of the Pennsylvania Statutes reads:

The qualifications of electors entitled to vote at primaries shall be the same as the qualifications of electors entitled to vote at elections within the election district where the primary is held, provided that no elector who is not registered and enrolled as a member of a political party, in accordance with the provisions of this act, shall be permitted to vote the ballot of such party or any other party ballot at any primary.

25 P.S. section 2872.2 (a) of the Pennsylvania Statutes reads, in part:

"Minor political party" shall mean a political party as defined in section 801(a) or (b) 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.

25 P.S. section 2911 (b) of the Pennsylvania Statutes reads, in part:

(b) 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. In the case of all other nominations, the number of qualified electors of the electoral district signing such nomination papers shall be at least equal to two percentum of the largest entire vote cast for any officer.

STATEMENT OF THE CASE

This Appeal originated from the Pennsylvania Bedford County Board of Elections’ denial of Annabelle C. Barkman’s attempt to cast a vote in the primary election held on May 19, 1998.

Petitioner Barkman, registered to vote as a non-partisan, requested that she be permitted to choose from among the ballots that were available that day, and the local elections board refused to allow her to vote.

Petitioner Barkman then contacted the Bedford County Court of Common Pleas’ President Judge, Daniel L. Howsare, who was performing election day duties. The judge conducted a hearing on Barkman’s oral petition at which Barkman argued that the denial of her right to vote constituted a violation of her constitutional guarantees, including her right of association, equal protection, and voting rights. Additionally, Barkman argued that the requirement of declaring political preference as a prerequisite to voting in the primary election violated her right to cast a secret ballot. The court concluded that Section 702 of the Pennsylvania Election Code, limiting the right to vote in any party’s primary elections to those registered as members of such party, did not violate Barkman’s right of free association or right to vote and did not violate the principle of equal protection of the laws.

Barkman then appealed the ruling to the Commonwealth Court of Pennsylvania. In that appeal, Barkman argued that her constitutional rights had been violated because a denial of her right to vote in the primary elections unconstitutionally abridged her voting, associational, and equal protection rights. Barkman argued that this Court’s affirmance of a District Court ruling on this issue, Nader v. Schaffer, 429 U.S. 989 (1976), did not apply because of the extreme differences between the permissive electoral participatory statutes of Connecticut law (as was examined in the Nader case) and Pennsylvania law, which is more restrictive of alternative methods of participating in the primary election system.

The case was argued in the Commonwealth Court on December 8, 1998. Although ruled to be technically moot, the Commonwealth Court declared that the case was one which involved a matter "of important public interest" that was "likely to recur yet escape judicial review" and therefore agreed to review the case. See Appendix at App.3. Addressing Barkman’s primary argument that the Nader case was inapplicable to the instant case due to the extreme difference between Connecticut and Pennsylvania ballot access law, the Commonwealth Court ruled that the Nader case was applicable and rendered a decision adverse to Barkman. The Commonwealth Court’s primary response to Barkman’s arguments in this regard are located in footnote 5 on page 8-9 of the Opinion. See Appendix at App.9.

Barkman filed a timely Petition for Allowance of Appeal to the Pennsylvania Supreme Court on April 12, 1999. The Pennsylvania Supreme Court, by a per curiam Order, denied the Petition for Allowance of Appeal on July 13, 1999. Barkman then filed the instant timely Petition for a Writ of Certiorari to this Court.

REASONS FOR GRANTING THE WRIT

671,500 Pennsylvania registered voters - ten percent of the entire registered voter population in the Commonwealth - are prohibited by state law from casting a ballot at the primary elections solely because they are registered to vote as neither members of the Democratic or Republican parties. Close to thirteen million registered voters nationally are disenfranchised in the twenty-five states and the District of Columbia where independently registered voters cannot cast a ballot in primary elections.

Under Pennsylvania law and the laws of these other states, non-partisan registered voters have no rights to participate in the state-sponsored primary election process which produces the candidates for the general election ballot. Like the Petitioner, these registered voters are ignored and shoved aside by the major parties during a primary season paid for by all of Pennsylvania’s citizens. Without being able to participate in the primary, many of these registered voters might choose to form their own party, run for office themselves, or petition to place independent candidates onto the primary election ballot - all options which would provide alternative means by which to participate in primary elections. In Pennsylvania, however, they are prevented by law from exercising any of these options. First, only major political parties are entitled to a primary election ballot spot and gaining position as a major political party has been placed beyond the reach of even the most organized independent party. Second, filing for office as an Independent candidate only allows access to the general election ballot and not the primary election ballot, and the signature requirements are so high even for access to the general election ballot that few independent parties or candidates ever obtain a ballot line for statewide office. Finally, non-partisan registered voters may choose to circulate petitions to run other candidates in the primary election, but under Pennsylvania law, no independent candidates can legally gain a primary election ballot line.

Thus, not only are these registered voters prohibited from voting in the primary election, they have been effectively disenfranchised from participating in the American political system. Across the United States, close to thirteen million voters suffer through this disenfranchisement. In Pennsylvania alone, over 671,500 voters are subjected to this exclusion from participation in the political process.

For these Pennsylvania citizens and for the Petitioner Barkman, the Nader v. Schaffer (429 U.S. 989 (1976)) case does not apply. Connecticut is not Pennsylvania. Precisely because Connecticut ballot access law allows a wide variety of independent candidates and parties to participate in the primary elections and to place candidates on the general election ballot; and Pennsylvania has gone to great lengths to eliminate any influence that these individuals or groups would have on the state-sponsored primary election process, Pennsylvania’s statutory scheme violates the Fourteenth Amendment rights of Barkman and others similarly situated.

In addition, this combination of laws - which has resulted in the denial of the Petitioner’s right of participation in democratic affairs - infringes on one of Barkman’s fundamental privileges and immunities as guaranteed under the Fourteenth Amendment of the United States Constitution - her right to participate in government.

I. The Petitioner’s Equal Protection and Due Process Rights Are Violated by Pennsylvania’s Statutory Scheme Which Unconstitutionally Burdens Her Participation in Primary Elections

In Tashjian v. Republican Party of Connecticut, 107 S.Ct. 544 (1986), this Court reiterated the definitive test that must be applied - on a state by state basis - to determine the constitutionality of election laws. In that case, this Court stated that

Id. at 548-49 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789) (citations omitted).

To determine the extent of the constitutional burden and the adequacy of the State’s response in election law cases, courts also use the balancing test developed in Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364 (1997), in which this Court explained that

Timmons at 1370.

This type of state specific analysis - closely examining the state electoral law being challenged and determining whether the state’s election laws unconstitutionally burden the Plaintiff - was a defining hallmark of the District Court’s decision in Nader v. Schaffer, 417 F. Supp. 837 (1976) (D. Conn), summarily affirmed, 429 U.S. 989 (1976). In that case, the U.S. District Court examined the statute that established Connecticut’s closed primary election system, while determining whether the closed primary system infringed on the non-partisan voter’s constitutional rights under the First and Fourteenth Amendments.

In that case, the District Court spent a substantial portion of the opinion determining the extent of the burden placed upon the non-partisan registered voter and examining alternative avenues through which the affected Plaintiff could exercise her First and Fourteenth Amendment rights to participate in the electoral system. After holding that the infringement was minimal due to the ease of access to other means of participation in the electoral process, this Court held that the regulatory interests advanced by the State outweighed the minimal infringement of rights imposed on the Plaintiff.

Pennsylvania ballot access laws, however, are fundamentally different than the Connecticut ballot access laws examined in Nader. Pennsylvania ballot access laws are among the most regressive in the nation - requiring a new party to register over one million voters to gain primary election ballot access. Pennsylvania ballot access law eliminates the opportunity for non-partisan registered voters to participate in primary elections through the creation of a new party, running as a candidate, or assisting other non-partisan candidates to achieve a ballot spot. Combined with the prohibition on participation in the primary process, the non-partisan or minor party-minded citizen in Pennsylvania has little recourse to the alternative means of electoral participation specifically relied upon by the Nader Court - easy access to the ballot and ease of access to nominating candidates and obtaining party status - to find minimal infringement on the Plaintiff’s constitutional rights.

As a result of this repressive combination of a closed primary election system with regressive ballot access laws in Pennsylvania, the constitutional burden upon non-partisan registered voters in Pennsylvania is severe. Because the burden on Petitioner Barkman and other non-partisan registered voters is more than incidental - and the Tashjian Court has already ruled that all of the supporting interests advanced by the Appellee in this case are insubstantial - the Pennsylvania closed primary statute must be declared to be an unconstitutional infringement on the rights of the Appellant.

A. Pennsylvania’s Ballot Access Statutory Scheme Restricts Access to Participation in the Primary Elections

In Nader, the District Court devoted a substantial portion of its decision to an examination of Connecticut’s ballot access laws in an attempt to fulfill the first prong of analysis established by Celebrezze - determination of the "character and magnitude of the asserted injury" to the constitutional rights of the Plaintiff.

The Court reviewed the entire framework established by Connecticut for the operation of the primary and general elections. More specifically, the Court reviewed the process by which major and minor parties, along with non-partisan candidates, gained access to the primary and general election ballots. This analysis formed a substantial portion of the Court’s determination that the Plaintiff’s rights were only minimally infringed by being prohibited from participating in the primary election process.

Under Connecticut law, candidates of both "major and minor parties" are automatically awarded spaces on the ballot for the general election. Nader at 841. To become a major party, a showing of 10% of the vote is required for a particular office, or 20% of the total vote in a gubernatorial election. Major party status grants automatic access to the primary and general election ballot. To become a minor party, all that is required is a showing of 1% of the vote in a gubernatorial election. Id. This electoral showing for a minor party automatically qualifies the party for a general election slot, and the minor party may nominate for offices by party convention, without a requirement of the collection of any petition signatures. Non-partisan candidates not nominated by a major or minor party may collect signatures equal to 1% of the votes cast in the last election to achieve a general election ballot line. All of these permissive avenues to the ballot led the Nader Court to state that "both minor party and independent candidates may reasonably anticipate a measure of success in local elections" in Connecticut. Id. at 843.

In Pennsylvania, however, only major parties are granted automatic ballot status and major parties are solely defined by the state as any party achieving over 15% voter registration of the entire registered voter population of the state. See 25 P.S. 2872.2(a). This results in a requirement for an independent party to register over one million voters under a new party’s name to gain a primary election ballot line. Since the highest percentage of registered voters achieved by an independent party in any state at the present time hovers around 3% (by the Alaska Independence Party), it is clear that the threshold established in Pennsylvania is unattainable. The current voter registration numbers for the largest Pennsylvania independent party - the U.S. Taxpayer’s Party - also bear out the impossibility of attaining a million registered voters. As of March of 1999, that Party had over 7,000 registered voters, with the next highest being the Reform Party with over 2,000 registered voters.

In addition, under Pennsylvania law, independent political parties can also attain "minor party" status through reception of over 2% of the vote in a general election. Yet minor parties in Pennsylvania, unlike Connecticut, are not awarded either a primary election ballot line or an automatic general election ballot line in the next election - they still must petition and collect over 30,000 signatures of registered voters to participate in the general election in a statewide election. See 25 P.S. section 2911 (b). The only advantage granted to a "minor party" versus other political organizations (who have not achieved the 2% threshold) is that the "minor party" is eligible to be listed on State-prepared voter registration forms. Thus, unlike in Connecticut, success at the polls does not result in increased ballot access.

The Nader court also went to great lengths to illustrate that minor parties have been successful in achieving major party status in Connecticut. In the opinion, the Nader Court specifically cited the "ease of access to the ballot which the Connecticut statutes provide for parties other than the Republican and Democratic Parties." Nader at 843. The Court then went on to cite that nine candidates over the past four years had achieved major party status, that sixty candidacies had achieved minor party status through elections, and that 969 candidates had attained ballot status for the general election. Id. at n.5.

As noted above, Pennsylvania ballot access law is much more regressive than the situation examined in Connecticut. Pennsylvania ballot access law prior to 1986 was similar to the Connecticut law examined in Nader. However, after the 1986 overhaul which established the high threshold for party status, no party (besides the Democratic and Republican Parties) has ever achieved "major party" status. Those few parties that have achieved "minor party" status over the past years still do not enjoy any type of parity with the major parties and are still forced to file inordinate numbers of petition signatures to qualify for a general election ballot spot. In addition, regardless of what percentage of the vote a minor party captures, candidates for that party in future elections must still collect the same number of signatures required of candidates who are running for the first time. Thus, a candidate of a new party could obtain 30% of the vote, and the new party would still not be automatically accorded a primary election or general election ballot line, and would continue to be forced to collect petition signatures to re-qualify for the ballot.

The situation in Pennsylvania is so extreme that House Bill 1918 - the "Voters’ Choice Act", was introduced into the legislature in 1998 and in 1999. Although it has not yet been voted upon, the bipartisan co-sponsorship of the Bill reveals support for the legislation. The House Bill would guarantee a ballot line to any party that received over 1% of the general election vote. In addition, the Bill would reduce from 30,000 (approx.) to 4,500 the number of signatures necessary for ballot access for an independent candidate running for statewide office. Thus, in this manner, even the Pennsylvania legislature has begun to acknowledge that Pennsylvania ballot access laws constitute an undue burden upon the rights of individual electors in the state.

Thus, for non-partisan registered voters such as Barkman, the other avenues of participation in electoral government are closed. The choice presented to Barkman and others similarly situated is either to declare a political preference and participate in the primary elections of the Democratic or Republican Parties, or give up the right to have any voice in which candidates are eventually placed on the general election ballot. Such a choice erodes the fundamental rights of participation in electoral affairs envisioned and guaranteed by the Fourteenth Amendment.

B. The Difference Between Connecticut’s Ballot Access Law and Pennsylvania’s Restrictive Ballot Access Statutory Scheme Places a Greater Burden on the Appellant in the Instant Litigation Than was Placed on the Plaintiff in Nader, and Therefore the Constitutional Balancing Test Reveals a Violation of the Plaintiff’s Rights.

This difference between Connecticut and Pennsylvania ballot access laws fundamentally alters the components of the equation used by the Nader and Tashjian Courts. What was once a minimal infringement in Nader has become a significant burden on the Petitioner under Pennsylvania’s statutory scheme. Once a significant burden is discovered, the second prong of the test used in Celebrezze is also fundamentally altered. No longer must the state only advance "legitimate" goals - it must advance substantial reasons for the support of the closed primary statute.

In Tashjian, this Court definitively stated that the interests advanced by the state of Connecticut in support of the closed primary system were insubstantial. In that case, this Court declared that the interests of (1) ensuring the administrability of the primary system, (2) preventing voter raiding, (3) avoiding voter confusion, and (4) protecting the responsibility of party government, were not substantial enough to override the fundamental constitutional rights advanced by the Plaintiff in that litigation.

Similarly, in this case, the County Board of Elections has advanced two insubstantial interests - first, that of "preserving the integrity of the electoral process"; and second, that of protecting the associational rights of party members – both interests which fail to outweigh the burden placed upon the Appellant by the Pennsylvania electoral system - that of disenfranchisement by the requirement of declaration of political preference to gain the right to participate in the state-sponsored primary elections.

Given the Tashjian Court’s elimination of the interests advanced by the Bedford County Board of Elections as being insubstantial, and the showing by the Appellant in this litigation that her constitutional rights have been substantially burdened, this Court is left with one central question: Are the associational rights of the members of the Democratic and Republican parties outweighed by the substantial infringement of the constitutional rights of Barkman and other non-partisan registered individuals?

At least one federal District Court, in a decision recently affirmed by the Ninth Circuit Court of Appeals, in California Democratic Party v. Jones, 984 F. Supp. 1288 (E.D. CA 1997), has answered in the affirmative. In that case, four established political parties challenged the passage of Proposition 198, which established an open primary system for the voters of California. The four political parties brought suit, alleging that the associational interests of their members outweighed the interests served by an open primary, and that Proposition 198 was unconstitutional.

The Court, after reviewing the Tashjian , Nader, and Timmons cases, declared that the interests served by an open primary system - enhancing the "democratic nature of the election process and the representativeness of elected officials", opening up the process to "independents and minority party voters", and encouraging "higher voter participation" clearly outweighed the associational rights advanced by the parties. Id. at 1301-02. The rights advanced by the parties had included the associational rights of their membership as well as the possibility of voter raiding.

Finalizing its analysis, the Court examined the effect that open primaries have had on the political process in other States, determining that the result has been beneficial to the systems of those states. Finally, in summary, the Court declared that "the fundamental goal of enhancing representativeness by providing all voters with a choice that is not predetermined by party members alone can only be advanced by the blanket primary." Id. at 1303.

Thus, the significant burden placed on Barkman, and other similarly situated non-partisan registered voters, clearly outweighs the interests advanced by the state in this case – producing an unconstitutional infringement on Barkman.

II. The Combination of the Effect of the Closed Primary System With Pennsylvania’s Regressive Ballot Access Laws Abridges One of Petitioner Barkman’s Privileges and Immunities - The Right to Participate in Government Guaranteed by the Fourteenth Amendment

Section One of the Fourteenth Amendment to the United States Constitution reads, in part, that

[n]o State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States. . .

Through its jurisprudence beginning immediately after the ratification of the Fourteenth Amendment in the Slaughter-House cases, this Court has recognized that certain democratic and economic rights are protected as privileges of citizens of the United States.

These rights were first described by early Courts interpreting the Privileges and Immunities language of Article IV, Section Two of the United States Constitution, as extending to

those privileges and immunities which are in their nature fundamental,

which belong of right to the citizens of all free governments. . .

Corfield v. Coryell, 4 Wash. C.C. 371, Fed. Cas. No. 3,230 (1825).

Although the Corfield case did not exhaustively enumerate which rights were protected, the Court declared that general categories of rights were protected by the Clause, including the right to "pursue and obtain happiness and safety"; the "right to acquire and possess property of every kind"; the right to "enjoyment of life and liberty"; and the "elective franchise." This definition was adopted by this Court in Ward v. Maryland, 12 Wall. 418 (1871), in which this Court stated that the rights protected "embrace[d] nearly every civil right for the establishment and protection of which organized government is instituted."

In The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughterhouse Company, et al., 83 U.S. 395 (1 Wall. 36-130)(1872) (the "Slaughter-House Cases"), this Court addressed arguments of New Orleans’ butchers that the City had granted an unconstitutional monopoly over slaughtering activities to a specific corporation, in violation of the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment.

In addressing the alleged violations of the Privileges and Immunities Clause, this Court used the Corfield case to further define the nature of the rights protected by that constitutional provision, and declared that citizen privileges included those rights which "owe their existence to the Federal government, its national character, its Constitution, or its laws." Id. at 79. For a more definitive listing of those rights, the Court reiterated the scope of the rights enunciated in the Corfield decision, by highlighting the "right to peaceably assemble and petition for redress of grievances", the right to "become a citizen of any state of the Union", and the right "to come to the seat of government to assert any claim he may have upon that government." Id. at 80.

The dissent to the Slaughter-House opinion, written by Justice Bradley, explained that the rights contemplated by the Privileges and Immunities Clauses were rights classified as "fundamental", which included those rights "wrested from English sovereigns at various periods". Id. at 114. Blackstone classified these rights under three headings: "the absolute rights of individuals", the "right of personal liberty", and the "right of private property." Justice Bradley concluded by declaring that the privileges of the English people were those rights the violation of which would "produce a revolution in an hour," Id. at 115 and that the American Revolution was produced by "taxation without representation" which was "subversive of free government." Id.

This Court, in Maxwell v. Dow, 176 U.S. 581 (1899), adopted the Corfield and Slaughter-House declarations and continued to define the scope of a citizen’s privileges and immunities by stating that protected rights included

those [] privileges and immunities arising out of the nature and essential

character of the national government, and granted or secured by the

Constitution of the United States.

Maxwell at 594 (citing United States v. Cruikshank, 92 U.S. 542 (1875)).

Among the rights enumerated in Maxwell as being protected by the Fourteenth Amendment’s Privileges and Immunities Clause were "the right to come to the seat of government to assert claims"; the right of free access "to the courts of justice"; the right "to peaceably assemble and petition for a redress of grievances", and the right "to become citizens of any state." Maxwell at 591.

In Hague v. Committee for Industrial Organization, 307 U.S. 954 (1939), this Court had another opportunity to further define the rights which were protected by the Privileges and Immunities Clause. In that case, this Court addressed the question of whether the "freedom to disseminate information concerning the National Labor Relations Act, [and] to assemble peaceably for discussion of the Act" was a privilege or immunity of a citizen secured against abridgement by the state under the Fourteenth Amendment. Id. at 962. In holding that these rights were protected, this Court quoted from the Cruikshank case, in which this Court explained that

Id. at 963 (quoting United States v. Cruikshank, 92 U.S. 542 (1875)).

This Court further explained that "[c]itizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages, and opportunities to accrue to citizens therefrom." Id. This Court concluded by adding that "it is clear that the right peaceably to assemble and to discuss these topics, and to communicate respecting them, whether orally or in writing, is a privilege inherent in citizenship of the United States which the Amendment protects." Id.

Contemporary jurisprudence of this Court which narrowed the interpretation of the Privileges and Immunities Clause when applied to discrimination by States against non-residents where economic interests were prejudiced, continued to outline the contours of which rights were protected by the Clause. In Baldwin v. Fish and Game Commission of Montana, et al., 436 U.S. 371 (1978), this Court explained that the "pursuit of common callings", "the ability to transfer property" and "access to the courts. . . constituted basic and essential activities, interference with which would frustrate the purposes of the formation of the Union." Id. at 1863. In a strong statement aimed at ensuring that the Privileges and Immunities Clause is given an expansive reading, this Court has also declared that "[t]he Court has never held that the Privileges and Immunities Clause protects only economic interests." Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 282 (1985).

In this Court’s most recent interpretation of the rights protected by the Privileges and Immunities Clause, Saenz v. Roe, 119 S.Ct 1518 (1999), this Court declared that the "right to travel" is a right protected by the Privileges and Immunities Clause of the Constitution. In its opinion, this Court explained that the foundation of this right was established by both Article IV, section 2 and the Fourteenth Amendment to the Constitution and that the right was central to the existence of the Union and is a core privilege and immunity of any citizen of the United States.

A. Petitioner Barkman’s Right to Participate in Government is a Constitutionally Protected Privilege and Immunity.

The fundamental core right of participation in government - a bundle of individual rights "arising out of the nature and essential character of the national government and granted or secured by the constitution of the United States", In re Kemmler, 136 U.S. 436, 448 (1890); Twining v. New Jersey, 211 U.S. 78, 97 (1908); Madden v. Commonwealth of Kentucky, 309 U.S. 83, 92 n.21 (1940), has been denied to Petitioner Barkman due to Pennsylvania’s statutory scheme which infringes upon several of the constituent constitutional components which comprise the right to participate in government. These constituent components of a citizens’ right to participate in government have been consistently recognized by the jurisprudence of this Court for well over a century.

The right to participate in government is inherently constructed of subsidiary rights which are protected by the textual guarantees of the United States Constitution. These include the free elections for federal representatives and passage of legislation envisioned and guaranteed by Article I, the qualifications of officeholders established by Article II, the Privileges and Immunities guaranteed by Article IV, section 2, and the guarantee of a Republican Form of Government guaranteed by Article IV, section 4.

The Amendments to the Constitution, originating as the Bill of Rights in the first ten Amendments, further define the component constituents of the right to participate in government. These include the right to freedom of speech, assembly, and petitioning of the Government for a redress of grievances guaranteed by the First Amendment; the securing of rights to the people in the Tenth Amendment; the direct election of President and Vice President guaranteed by the Twelfth Amendment; the Privileges and Immunities protected by the Fourteenth Amendment; the right to vote guaranteed by the Fifteenth, Nineteenth, Twenty-Fourth, and the Twenty-Sixth Amendments; and the direct election of U.S. Senators protected by the Seventeenth Amendment.

The fundamental status conferred on these rights by this Court flow from their privileged existence within the text of the Constitution and from the understanding that these privileges of citizenry "lie at the base of all our civil and political institutions." Palko v. State of Connecticut, 302 U.S. 319 (1937) and form the "basic values that underlie our society." Moore v. City of East Cleveland, 431 U.S. 494 (1977). This Court has broadly construed the core constitutional rights which comprise the right to participate in government; which include the right to vote, to speak freely, to peaceably assemble, to petition for redress of grievances, to run for elected office, and to support candidates for elected office.

The right to vote has been interpreted to include the recognition that all qualified voters have a constitutionally protected right to vote; and that the right to vote cannot be denied outright, nor destroyed by alteration of ballots, nor diluted. Reynolds v. Sims, 377 U.S. 533 (1964). This Court has pronounced that

Id. at 555, 563.

This Court has also declared that "each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies." Id.

In like manner, the First Amendment’s protection of free speech "has its fullest and most urgent application to speech uttered during a campaign for political office." Burson v. Freeman, 504 U.S. 191 (1992). In Buckley, this Court pronounced that

Buckley v. Valeo, 424 U.S. 1, 14 (1976).

The Court also restated its’ evaluation that "there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs" and that the "ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation." Buckley at 14-15. This Court has most broadly protected these First Amendment rights by guaranteeing protection to public forums used for political expression, declaring that "[s]uch use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. CIO, 307 U.S. 496, 515 (1939).

The right of a people to peaceably assemble and to petition the Government for redress of grievances has also been broadly construed on the basis that

United States v. Cruikshank, 92 U.S. 588, 591 (1875).

The Cruikshank Court explained that the right of people to peaceably assemble

Id. See also Palko v. State of Connecticut, 302 U.S. 319, 324 (1937); Moore v. City of East Cleveland, 431 U.S. 494, 500-502 (1977).

No one would argue that the ability to run for federal and state office and the ability to support a candidate of one’s choice are not rights fundamental to preservation of a republican form of government. This Court has declared that "[f]ree and honest elections are the very foundation of our republican form of government . . . [t]he theme of the Constitution is equality among citizens in the exercise of their political rights." Reynolds v. Sims at 564, n. 41 (quoting MacDougall v. Green, 335 U.S. 288, 290 (1948) (Douglas, J., dissenting).

Secured together, this litany of fundamental rights recognized as the right to participate in government, has been specifically delineated by this Court as a right guaranteed to individual citizens as a Privilege of citizenship under the Fourteenth Amendment. In Reynolds, this Court declared that

representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies.

Reynolds at 565.

In addition, this Court held in Buckley that restrictions on amounts spent by candidates themselves, or by individuals independent of candidates - in support of candidacies - violated First Amendment rights. 424 U.S. 1. Clearly, the disenfranchisement of non-partisan registered voters in the threshold primary elections - combined with Pennsylvania’s regressive statutory scheme governing other avenues of participation in government - eliminates this fundamental right to "full and effective participation" in political processes.

B. Pennsylvania’s Statutory Scheme Denies Barkman the Right to Participate in Government, Thus Violating Her Constitutionally Guaranteed Privileges and Immunities

Pennsylvania statutes which combine to deny Petitioner Barkman’s right to participate in government violate Barkman’s constitutionally guaranteed Privileges and Immunities as a citizen of the United States. Pennsylvania statutes eliminating Petitioner Barkman’s right to participate in the state-sponsored electoral system, her right to run for office, and her right to support other candidates for office combine to violate her constitutionally-guaranteed fundamental right to participate in government.

Pennsylvania’s statutory scheme, taken together, unconstitutionally eliminates or burdens Barkman’s right to participate in government. Although individually each of these infringements may be constitutionally permissible, an aggregation of burdens upon her right to participation renders Pennsylvania’s statutory scheme governing elections violative of constitutional guarantees.

Having been prohibited from participating in the state-sponsored and financed primary elections, Petitioner Barkman would normally have other options available through which to participate in state and federal government, all of which are also individually constitutionally protected avenues of participation. First, Barkman could choose to run for office herself by collecting signatures necessary to place herself on the primary election ballot. Second, she could lead an initiative/referendum process to allow participation of non-partisan registered voters in Pennsylvania’s primary elections and to enlarge access to Pennsylvania’s general election ballot. Finally, Barkman could form a political party independent of the Republican and Democratic Parties and offer citizens the opportunity to vote in the primary elections for candidates duly nominated by this new party.

In Pennsylvania, however, these options have been foreclosed - thus eliminating Barkman’s fundamental right to participate in state and federal government. Running as a non-partisan candidate in Pennsylvania eliminates the candidate’s right to participate in the primary elections, and only guarantees a ballot line for the general election - after the collection of tens of thousands of signatures of registered voters. Under Pennsylvania law, this holds true for non-partisan candidates for both state and federal elected office.

Barkman’s possible choice to engage in an initiative/referendum process to enable non-partisan registered voters to participate in primary elections and to enlarge ballot access in the general election is also an impossibility under Pennsylvania law. Pennsylvania’s lack of a statutory process for initiative/referendum voids this possibility of Barkman’s participation in altering the system to accommodate non-partisan registered voters.

Finally, Barkman would normally be empowered to form another political party, which could then run candidates for the primary elections. In Pennsylvania, however, this option is also an impossibility, due to the prohibition placed on political parties other than the Republican and Democratic parties from placement on the primary election ballots. Access to "major party" status - and equal rights with the two major political parties - requires the registration of fifteen percent (15%) of all eligible voters under the designation of the new party. In Pennsylvania, however, this option translates into the registration of over 1,000,000 voters under the new party’s designation - a herculean if not unconstitutional burden itself, considering that even the most successful independent political parties are rarely able to register over three percent (3%) of the registered voter population.

Thus, Barkman and others similarly situated, are deprived of their fundamental right to participate in government by the combined stranglehold that Pennsylvania’s statutory system places on all avenues of participation in government. The requirement of closed primary elections, combined with the elimination of other modes of participation in government, unconstitutionally eliminate and burden Barkman’s fundamental right to participate in government.

III. Conclusion

This Court’s strongest role since its creation by the people through the United States Constitution has been the safeguarding of individually guaranteed, constitutionally-derived rights. Special and expansive protection has been granted by this Court to individual rights determined to be fundamental rights, or those rights which serve as "attributes of citizenship under a free government." United States v. Cruikshank, 92 U.S. 588, 591 (1875). The right to participate in government is the cornerstone of natural rights which secures all other rights guaranteed by the Constitution and Bill of Rights. This Court, through this case, has the opportunity to vindicate that essential, fundamental constitutional right by declaring that the Pennsylvania statute prohibiting non-partisan registered voters from participating in state sponsored primary elections unconstitutionally burdens, in combination with other Pennsylvania statutes, Barkman’s fundamental right to participate in state and national government.

The Community Environmental Legal Defense Fund (CELDF)

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Thomas Alan Linzey, Esq.
Counsel of Record
2859 Scotland Road
Shippensburg, Pennsylvania 17257
(717) 709-0457
(717) 709-0263 (fax)
Counsel for Petitioners