Am. Civil Rights Union, in Its Individual & Corporate Capacities v. Phila. City Commissioners

• Decision Date: 25 September 2017
• Docket Number: No. 16-3811.,16-3811.
• Citation: 872 F.3d 175
• Parties: AMERICAN CIVIL RIGHTS UNION, in Its individual and corporate capacities, Appellant v. PHILADELPHIA CITY COMMISSIONERS
• Court: U.S. Court of Appeals — Third Circuit

872 F.3d 175

AMERICAN CIVIL RIGHTS UNION, in Its individual and corporate capacities, Appellant

v.PHILADELPHIA CITY COMMISSIONERS

No. 16-3811.

United States Court of Appeals, Third Circuit.

Argued April 27, 2017

Opinion Filed: September 25, 2017

John C. Eastman [ARGUED], Center for Constitutional Jurisprudence, One University Drive, Orange, CA 92866, Linda A. Kerns, 1420 Locust Street, Suite 200, Philadelphia, PA 19102, Joseph A. Vanderhulst, Esq., Public Interest Legal Foundation, 32 East Washington Street, Suite 1675, Indianapolis, IN 46204, Attorneys for Plaintiff-Appellant

Kelly S. Diffily [ARGUED], Sozi Pedro Tulante, City of Philadelphia, Law Department, 17th Floor, 1515 Arch Street, One Parkway, Philadelphia, PA 19102, Benjamin H. Field, City of Philadelphia, Law Department, 1515 Arch Street, One Parkway, Philadelphia, PA 19102, Attorneys for Defendants–Appellees

Ira M. Feinberg, Daryl L. Kleiman, Hogan Lovells US, 875 Third Avenue, New York, NY 10022, Sarah C. Marberg, Hogan Lovells, 555 Thirteenth Street, N.W., Columbia Square, Washington, DC 20004, Attorneys for Amicus Appellees Project Vote and Demos

Before: McKEE, VANASKIE, and RENDELL, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge.

The American Civil Rights Union ("ACRU") challenges the Philadelphia City Commissioners' failure to purge the city's voter rolls of registered voters who are currently incarcerated due to a felony conviction. Because state law prohibits felons from voting while they are in prison, the ACRU argues that the National Voter Registration Act requires the Commissioners to remove them from the voter rolls. For the reasons that follow, we will affirm the District Court's dismissal of this suit.

I. Background

A. Factual and Procedural Background

The ACRU is a nonprofit organization that states that it "litigates to enforce clean voter registration rolls" and "promotes election integrity."¹ In January of 2016, the ACRU sent a letter to the Philadelphia City Commissioners, which is responsible for overseeing elections in Philadelphia.² The letter stated, in part, that "your county is failing to comply with Section 8 of the National Voter Registration Act (NVRA)" by not making "a reasonable effort to maintain voter registration lists free of dead voters, ineligible voters and voters who have moved away."³ The letter also asked the Commissioners to provide, inter alia , documentation of their efforts to maintain accurate voter lists and "the number of ineligible voters removed for criminal conviction."⁴ The letter stated that its purpose was to serve as notice that the Commissioners could be sued under the NVRA.

The following April, the ACRU did sue the City Commissioners for injunctive relief pursuant to the NVRA. The suit alleged that the Commissioners failed to provide list maintenance documentation as required by 52 U.S.C. § 20507(i) and asked to inspect the Commissioners' records.⁵

The Commissioners moved to dismiss. In June, the Commissioners met with the President of the ACRU and explained that they do not remove persons incarcerated due to felony conviction from the rolls or otherwise make note of registrants that are currently incarcerated due to felony conviction. They also told the ACRU that the City did not attempt to coordinate any efforts with law enforcement to identify such registrants.

Thereafter, the ACRU moved for a preliminary injunction and leave to amend its complaint. In its motion, the ACRU claimed "[t]he NVRA requires [the City Commissioners] to make a ‘reasonable effort to remove the names of ineligible registrants from the official lists of eligible voters,’ including voters ineligible by virtue of felony conviction."⁶ The District Court concluded that the ACRU had "grossly misrepresented the plain language of the statute."⁷ Instead of granting the requested relief, the Court sua sponte issued a Rule to Show Cause as to why the motion should not be stricken and why the Court should not issue sanctions.⁸ The ACRU responded that though its characterization of the NVRA was incomplete, the NVRA must be read together with the requirements of the Help America Vote Act ("HAVA"), and that when taken together, the ACRU's position was consistent with the statutory scheme.⁹ Although the Court did not sanction the ACRU for misrepresenting the NVRA, it did deny the motion for a preliminary injunction.

After additional motions were filed, the District Court granted the Commissioners' motion to dismiss the Amended Complaint. In a very detailed and thorough analysis, the Court held that neither the NVRA nor HAVA requires the Commissioners to remove felons from the voter rolls while they are incarcerated.¹⁰ This timely appeal followed.

B. Statutory Background

i. National Voter Registration Act

The National Voter Registration Act has four main goals: (1) increasing the number of registered voters, (2) increasing participation in federal elections, (3) maintaining current and accurate voter rolls, and (4) ensuring the integrity of the voting process.¹¹ These goals can sometimes be in tension with one another: On the one hand, maintaining clean voter rolls may help ensure election integrity, but on the other hand, purging voters from the rolls requires voters to re-register and hinders participation in elections. However, it is clear from the legislative history that Congress was wary of the devastating impact purging efforts previously had on the electorate. Congress noted that not only are purging efforts often "highly inefficient and costly" to the state by requiring reprocessing of registrations but also that "there is a long history of such cleaning mechanisms [being] used to violate the basic rights of citizens."¹² The drafters attempted to balance these concerns with the need for clean voter rolls: "An important goal of this bill, to open the registration process, must be balanced with the need to maintain the integrity of the election process by updating the voting rolls on a continual basis."¹³

Accordingly, the NVRA both protects registered voters from improper removal from the rolls and places limited requirements on states to remove ineligible voters from the rolls. The section that squarely addresses these requirements, Section 8, is the crux of this dispute.¹⁴ That section provides as follows:

In the administration of voter registration for elections for Federal office, each State shall ...

(3) provide that the name of a registrant may not be removed from the official list of eligible voters except—

(A) at the request of the registrant;

(B) as provided by State law, by reason of criminal conviction or mental incapacity; or

(C) as provided under paragraph (4);

(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—

(A) the death of the registrant; or

(B) a change in the residence of the registrant, in accordance with subsections (b), (c), and (d) [notice provisions set forth in Section 8]....¹⁵

In short, once a person is properly registered to vote, a state is only permitted to remove him or her from the voting list for narrowly specified reasons. Specifically, Congress allows removal if: the person dies, changes residence, asks to be taken off the list, or becomes ineligible under state law because of criminal conviction or mental incapacity. The NVRA also provides a private right of action so that private parties "aggrieved by a violation of this chapter" may sue to enforce the statute.¹⁶

ii. Pennsylvania's Restriction of the Franchise

The extent to which convicted felons are denied the right to vote varies greatly from state to state, depending on the law of a given state. In states like Maine and Vermont, for example, individuals convicted of crimes retain the right to vote at all times.¹⁷ Individuals convicted of felonies may even register and vote from prison.¹⁸ At the other end of the spectrum, states like Florida and Kentucky deprive individuals convicted of felonies of the right to vote for the rest of their lives with few exceptions.¹⁹

In Pennsylvania, individuals convicted of felonies are only barred from voting during the period that they are incarcerated. Pennsylvania law specifically excludes anyone who is incarcerated from the definition of "qualified absentee electors":

[T]he words ‘qualified absentee elector’ shall in nowise be construed to include persons confined in a penal institution or a mental institution nor shall it in anywise be construed to include a person not otherwise qualified as a qualified elector in accordance with the definition set forth in section 102(t) of this act.²⁰

Nevertheless, individuals registered to vote before being incarcerated are permitted to vote immediately upon release.²¹ And those not previously registered to vote may register in prison if they will be released by the date of the election.²² Thus, Pennsylvania law "do[es] not completely disenfranchise the convicted felon, as is the case in fourteen of [its] sister states; it merely suspends the franchise for a defined period."²³

Even though Pennsylvania suspends the franchise during the period of incarceration, it does not require the removal of registrants from voter rolls due to incarceration for a felony conviction. Rather, Section 1909(a) of the Pennsylvania Voter Registration Act, like the NVRA, directs that "[a]n elector's registration shall not be canceled except" if the voter dies, changes residence, asks to be taken off the list, or removal is necessary to comply with the NVRA.²⁴ As noted above, the NVRA refers only to state law, death, change in residence, or request of the registrant.

iii. Help America Vote Act

The HAVA was enacted in 2002 to help improve the equipment used to cast votes, the way registration lists are maintained, and how polling operations are conducted.²⁵ Most relevant here, the HAVA builds on the NVRA by requiring that each state maintains a computerized database for voter registrations.²⁶...