Mixon v. Com.

• Decision Date: 18 September 2000
• Citation: 759 A.2d 442
• Parties: Lorenzo L. MIXON, Nathaniel Brown, Dolores Figueroa, Joseph Hill, Jeffrie S. McKinzie, William P. Alston and Maureen Williams, Petitioners, v. COMMONWEALTH of Pennsylvania and Kim Hanna Pizzingrilli, Secretary of the Commonwealth, Respondents.
• Court: Pennsylvania Commonwealth Court

759 A.2d 442

Lorenzo L. MIXON, Nathaniel Brown, Dolores Figueroa, Joseph Hill, Jeffrie S. McKinzie, William P. Alston and Maureen Williams, Petitioners, v. COMMONWEALTH of Pennsylvania and Kim Hanna Pizzingrilli, Secretary of the Commonwealth, Respondents.

Commonwealth Court of Pennsylvania.

Argued March 8, 2000.

Decided September 18, 2000.

Samuel C. Stretton, West Chester, for petitioners.

Francis R. Filipi, Harrisburg, for respondents.

BEFORE: DOYLE, President Judge, COLINS, Judge, McGINLEY, Judge, SMITH, Judge, PELLEGRINI, Judge, FLAHERTY, Judge, LEADBETTER, Judge. DOYLE, President Judge.

Before the Court en banc are the preliminary objections of Respondents, the Commonwealth of Pennsylvania and Kim Pizzingrilli as Secretary of the Commonwealth, filed in response to a petition for review filed under our original jurisdiction. The Petitioners are six convicted felons who are present or former confinees (Convicted Petitioners) of the Pennsylvania Department of Corrections (DOC) and Maureen Williams (Petitioner Williams), a resident of Philadelphia and a black female elector¹ who is currently registered to vote. Ms. Williams resides in a voting district in which the majority of voters are black and Hispanic, frequently combining to vote in a block-type fashion.

The Convicted Petitioners consist of two incarcerated felons (Messrs. Mixon and McKinzie, collectively "Registered Felons") who are registered voters, but who are not "qualified absentee electors" under the Pennsylvania Election Code (Election Code);² two incarcerated felons (Messrs. Hill and Alston, collectively "Non-registered Felons") who may neither register nor obtain an absentee ballot under the Election Code and the Pennsylvania Voter Registration Act;³ and two convicted felons (Messrs. Brown and Figueroa, collectively "Released Felons") who have been released from a state correctional institution, who are not presently registered to vote and who may not lawfully register to vote because of the Pennsylvania Voter Registration Act.

On June 21, 1996, one year prior to becoming eligible for parole, Petitioner Mixon was transferred by the DOC from confinement at the State Correctional Institution at Huntington (SCIH) to confinement at the DOC Community Correction Center at Third and Arch Streets in Philadelphia, to serve the remaining year of his minimum term. While on a temporary authorized absence from confinement, Petitioner Mixon voted at his Delaware County polling place of record during the November 1996 general election. Subsequently his parole was denied and he was returned to Huntington. In April 1999, Petitioner Mixon submitted a written application for an absentee ballot to the Delaware County Bureau of Elections for the purpose of voting in the May 1999 primary election. His application was denied on the basis that he was not a "qualified absentee elector" pursuant to 25 P.S. §§ 2602(w) and 3146.1, which provide in pertinent part as follows:

[T]he words "qualified absentee elector" shall in nowise be construed to include persons confined in a penal institution....

25 P.S. § 2602(w).

[T]he words "qualified absentee elector" shall in nowise be construed to include persons confined in a penal institution....

25 P.S. § 3146.1.

Petitioner McKinzie is currently confined at SCIH and is a registered elector in Allegheny County. Prior to the November 1998 general election, he submitted a written application for an absentee ballot to the Allegheny County Election Division. His application was denied pursuant to 25 P.S. § 3146.1. In April 1999, he again submitted an application for an absentee ballot but, as of the date his petition was filed in this matter, he had received no reply.

Petitioners filed a complaint in equity on July 8, 1999, seeking declaratory relief challenging the sections of the Election Code that exclude felons confined in a penal institution from the definition of "qualified absentee electors," and the provisions of the Pennsylvania Voter Registration Act that bar a felon released from a penal institution less than five years from registering to vote, as unconstitutional. Section 501 of the Pennsylvania Voters Registration Act precludes registration by an incarcerated felon within five years of release from incarceration by stating in pertinent part:

§ 961.501. Qualifications to register

Eligibility.—A qualified elector who will be at least 18 years of age on the day of the next election, who has been a citizen of the United States for at least one month prior to the next election and who has resided in this Commonwealth and the election district where the qualified elector offers to vote for at least 30 days prior to the next ensuing election and has not been confined in a penal institution for a conviction of a felony within the last five years shall be entitled to be registered as provided in this chapter.

25 P.S. § 961.501 (emphasis added).

Petitioners also seek a permanent injunction barring enforcement of the above statutory provisions. Respondents have filed with this Court preliminary objections, challenging Petitioners' ability to maintain this action asserting: (1) that the petition for review fails to state a claim for which relief may be granted; and (2) that Petitioner Williams lacks standing to assert any claim in the petition for review because she is not a convicted felon.

The basic theories underlying these claims are that Article I, Section 5 of the Pennsylvania Constitution of 1968⁴ permits no modification of an elector's qualifications for voting, which are age and residency; that Article I, Section 25 of the Pennsylvania Constitution of 1968⁵ denies the General Assembly the authority to alter these qualifications without amendment to the Constitution; and that the language contained in Article VII, Section 1 of the Pennsylvania Constitution of 1968⁶ only permits the General Assembly to enact laws governing the time and place of elections, but not the qualifications for electors. The Convicted Petitioners allege that a provision of the Pennsylvania Voting Rights Act requiring the disenfranchisement of felons, although facially neutral, has a disparate impact on black Pennsylvanians. They contend that there has been a sordid history of disenfranchisement in this country, largely directed at minorities. They challenge their disenfranchisement under the Pennsylvania Constitution of 1968,⁷ which, they allege, permits voting as the fundamental right of electors who meet the constitutional requirements of age and residency. The Convicted Petitioners argue that Pennsylvania lacks a compelling reason to justify disenfranchisement of felons, and that the true reason for such state action is to impose a disproportionate disadvantage on blacks.⁸ They also contend that Article I, Section 25 of the Pennsylvania Constitution prevents the General Assembly from enacting laws that interfere with, or prevent, the free exercise of the right of suffrage. The Convicted Petitioners rely on Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914), for the proposition that, pursuant to the free and equal clause of our Pennsylvania Constitution, the right to vote cannot be denied them.

The Convicted Petitioners also argue that when Article VII, Section 1 of the Pennsylvania Constitution, relating to voter qualifications, is read in tandem with Winston, no regulation or statute can operate to disenfranchise their votes. Moreover, they contend that Article VII, Section 14⁹ of the Pennsylvania Constitution, concerning absentee voting, does not disqualify from voting either a felon who is incarcerated or a felon who has been released but is still within five years of his incarceration. The Convicted Petitioners allege that Article I, Section 25 of the Pennsylvania Constitution effectively declares that suffrage is an inviolate right, free from regulation by the legislature and that only a constitutional amendment can change voting qualifications in this Commonwealth.

The Convicted Petitioners further maintain that Section 501 of the Voters Registration Act impliedly repeals the definition of "qualified absentee elector," and, moreover, contend that there is no compelling reason why Pennsylvania has denied suffrage only to felons sentenced to imprisonment rather than to probation, or permitted convicted felons who are registered to vote prior to incarceration to vote on their release, while those not registered to vote prior to incarceration may not register until five years following their release.¹⁰

Respondents argue that Martin v. Haggerty, 120 Pa.Cmwlth. 134, 548 A.2d 371 (1988), controls the outcome of the issues before us. Respondents also assert that "qualified absentee elector" is defined under the Election Code in relevant part: "Provided, however, That the 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," 25 P.S. § 2602(w) (emphasis added), and that our Supreme Court in Ray v. Commonwealth, 442 Pa. 606, 276 A.2d 509 (1971), decided that the definition of "qualified absentee elector" as excluding persons confined in penal institutions, did not violate either the state or federal constitutions.

Finally, Petitioner Williams asserts that language contained in Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261 (1999), supports her argument that she has standing to proceed in this matter based on vote dilution and her desire to protect the fundamental right to vote.

I. The Registered Felons

The starting point of our analysis is the presumption of constitutionality that all legislative enactments enjoy under both the rules of statutory construction and the decisions of our courts. See 1 Pa.C.S. § 1922(3); Common Cause of Pennsylvania v. Commonwealth, 668...