Pa. reviews ways to elect new senator after judge rejects its system


WASHINGTON -- Pennsylvania officials huddled yesterday to plan ways to fight, or else adjust to, a landmark federal court ruling that would give voters a more direct role in filling vacancies in the U.S. Senate.

The legal complications also created a new political problem for U.S. Attorney General Richard L. Thornburgh, who may now remain in the Cabinet and out of politics for much of the rest of the summer.

The Justice Department chief had planned to step down by early August to run for the Senate seat of the late Pennsylvania Republican John Heinz, who was killed in a plane crash in April. Mr. Thornburgh, after much hesitation, agreed to take on Democratic Sen. Harris Wofford -- now holding the seat temporarily -- in November.

But U.S. District Judge Edward N. Cahn of Philadelphia ruled Monday that Pennsylvania's special election system is unconstitutional because it lets politicians, not voters, nominate the candidates.

When a Senate vacancy had occurred, Democratic and Republican party committees in that state got to nominate the candidates, who then met in a statewide general election.

Laying down a broad new constitutional precedent, Judge Cahn saidthe Constitution's 17th Amendment means that the state legislature "must provide for popular election of the new senator" and do so in a way that assures that voters can take part "at the nomination stage," too. (The 17th Amendment, ratified in 1913, changed the method of filling Senate vacancies from nomination to election.)

The judge did not order Pennsylvania to hold a primary election but said that if the state wishes to nominate before a general election, it must do so with "popular participation," rather than by "elite members of party committees."

The judge suggested, but did not require, that a primary could be held this fall and a general election next spring. In a series of meetings in Harrisburg yesterday, state officials weighed their next steps -- legally and politically. The court fight could move toward a quick resolution, but the political response could take more time to develop.

The legislature is in session now in Harrisburg, but there was no word last night on what state officials might ask it to do.

If officials and politicians opt to schedule a primary, that could slow down Mr. Thornburgh's plan to give up his Cabinet seat this summer to start campaigning and could prolong a race that he and his political advisers had hoped would be brief.

A former two-term governor of the state, Mr. Thornburgh is regarded as the heavy favorite in the Senate contest, a position that could fade, however, in a longer campaign. He had been expected to resign in time to be nominated at a Republican committee meeting currently scheduled for Aug. 15.

That plan now depends significantly upon the outcome of the legal fight, according to Thornburgh aides. It will be "business as usual" for the attorney general, said his spokesman, Dan Eramian, until there is a legal solution. "He still expects to be a candidate in November -- on the assumption that this matter can be resolved," Mr. Eramian said.

It appears that Judge Cahn's ruling means that the Pennsylvania legislature must pass a new law to change the process -- unless the judge is overturned by the 3rd U.S. Circuit Court of Appeals in Philadelphia. Iris Crumley, spokeswoman for the Pennsylvania Department of State, said, "I would be surprised if they [state lawmakers] take action" promptly.

Senator Wofford, appointed last month by Democratic Gov. Robert P. Casey to fill the Heinz seat until an election can be held, has already been nominated by the Democratic Party.

A former civil rights aide to President John F. Kennedy, he has never run for office before, and a delay in holding an election would give him an opportunity to become better known around the state.

But the senator's chief political strategist, James Carville, acknowledged that campaign fund raising was likely to suffer until questions about the election law were resolved.

"Republicans are trying to fool with the electoral process so they can blindside us," charged Mr. Carville, who is also a close adviser to Governor Casey. He noted that the lawsuit challenging the special election was filed by a would-be Republican Senate candidate, John S. Trinsey Jr., and that Judge Cahn was appointed by a Republican president, Gerald R. Ford.

A spokesman for state Attorney General Ernest R. Preate said that the question of whether to appeal the court ruling was being reviewed by Mr. Preate, by Governor Casey and by legislative leaders, and that no decision had been made. Pennsylvania politicians said privately, however, that they expected the state later this week to ask the appeals court to take up the issue rapidly.

The Circuit Court of Appeals, whatever it does, could act in a matter of days.

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