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.
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 we have also held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause.
The ill effects of these laws are further magnified when the major parties elect to cross-nominate the same candidate, as they did in the school board election at issue. When the major parties cross-nominate a candidate, a minor party candidate must fight an uphill election battle 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.
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.”
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 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.
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.
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