Vote v. Kelly, Civil Action No. 09–951.

• Decision Date: 27 July 2011
• Docket Number: Civil Action No. 09–951.
• Citation: 805 F.Supp.2d 152
• Parties: PROJECT VOTE and Maryellen Hayden, Plaintiffs, v. Linda L. KELLY, Attorney General, Commonwealth of Pennsylvania, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

805 F.Supp.2d 152

PROJECT VOTE and Maryellen Hayden, Plaintiffs,

v.Linda L. KELLY, Attorney General, Commonwealth of Pennsylvania, Defendant.

Civil Action No. 09–951.

United States District Court, W.D. Pennsylvania.

July 27, 2011.

Arthur Z. Schwartz, Schwartz, Lichten & Bright PC, New York, NY, Witold J. Walczak, ACLF of PA, Sara Rose, ACLU, Pittsburgh, PA, for Plaintiffs.

Howard G. Hopkirk, Susan J. Forney, Pennsylvania Office of Attorney General, Harrisburg, PA, for Defendant.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.I. Introduction

This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. Docket Nos. 70 & 74. For the reasons that follow, the motion for summary judgment filed by the Defendant ( Docket No. 70 ) will be granted, and the motion for summary judgment filed by the Plaintiffs ( Docket No. 74 ) will be denied.

II. Background

At all times relevant to this case, the Association of Community Organizations for Reform Now (“ACORN”) was a national organization dedicated to promoting social and economic justice for individuals and families with low and moderate incomes. Docket Nos. 75 & 81 at ¶ 5. Project Vote is a nonpartisan, nonprofit organization seeking to increase the levels of electoral participation among individuals living in low-income, moderate-income and minority communities. Id. at ¶ 10. Project Vote has been developing voter-registration and “Get–Out–The–Vote” programs since 1994. Id. at ¶ 12. Throughout the past seventeen years, Project Vote has collected more than 5.6 million voter-registration applications from citizens living in Pennsylvania's low-income and minority communities. Id. Some of Project Vote's electoral activities were conducted in partnership with ACORN. Id. at ¶ 13. Maryellen Deckard (“Deckard”) is a Pennsylvania resident who once served as the head organizer for ACORN's Pittsburgh office. Id. at ¶ 15. In that capacity, she directed ACORN's local voter-registration drive in 2008. Id. at ¶ 16. Deckard intends to participate in future voter-registration drives in Pennsylvania. Id. at ¶ 17. At the present time, Project Vote is developing plans to conduct voter-registration drives during the 2012 election season. Id. at ¶ 14.

Prior to the 2008 general election, there were thousands of eligible individuals residing in Allegheny County, Pennsylvania, who had not registered to vote. Id. at ¶ 28. Both ACORN and Project Vote attempted to alleviate this problem by expanding their voter-registration activities in Allegheny County. Id. Project Vote developed a voter-registration model involving the use of paid canvassers to locate unregistered individuals and assist them with the registration process. Id. at ¶¶ 29–30. Canvassers were generally expected to discuss the importance of voting and issues of mutual concern while assisting prospective voters in their efforts to register. Id. at ¶ 31.

ACORN implemented Project Vote's voter-registration model by hiring paid canvassers. Id. at ¶ 32. Deckard served as one of ACORN's supervisors. Id. at ¶¶ 33, 38, 41. During the 2008 election season, ACORN hired more than 300 canvassers in Allegheny County. Id. at ¶ 35. The canvassers typically worked six-hour shifts and were paid at the rate of $8.00 per hour. Id. at ¶ 33. Each employee was paid on an hourly basis regardless of the number of voter-registration applications secured during the course of his or her shift. Id. at ¶ 34. No commission payments or financial incentives were awarded based on the number of applications procured by individual canvassers. Id. at ¶ 32. ACORN merely set an “aspirational” goal of twenty applications per shift for each employee. Id. at ¶ 37. The average canvasser collected slightly more than thirteen applications per shift. Id. at ¶ 40. Roughly 81% of the canvassers failed to satisfy ACORN's production-based expectations. Id. at ¶ 39. No employee was terminated for failing to meet his or her performance goal on a single occasion. Id. at ¶ 41. Instead, canvassers who failed to perform up to ACORN's expectations were afforded opportunities to improve their techniques for engaging potential voters. Id. at ¶ 42. ACORN submitted approximately 40,000 new voter-registration applications to the Allegheny County Elections Division (“Elections Division”) during the first ten months of 2008. Id. at ¶ 38.

On May 7, 2009, Allegheny County District Attorney Stephen Zappalla (“District Attorney”) filed criminal charges against seven individuals, alleging that they had committed criminal offenses related to the submission of fraudulent voter-registration applications. Id. at ¶ 43. Five of the seven individuals charged with crimes were former ACORN canvassers. Id. All seven individuals were charged, inter alia, with violations of 25 Pa. Cons.Stat. § 1713, which provides:

§ 1713. Solicitation of registration

(a) Prohibition.—A person may not give, solicit or accept payment or financial incentive to obtain a voter registration if the payment or incentive is based upon the number of registrations or applications obtained.

(b) Penalty.—A person who violates subsection (a) commits a misdemeanor of the third degree and shall, upon conviction, be sentenced to pay a fine of not less than $500 nor more than $2,500 or to imprisonment for not less than one month nor more than one year, or both.

25 Pa. Cons.Stat. § 1713. The District Attorney pursued the charges under § 1713 based on language contained in the related affidavits of probable cause suggesting that the charged individuals had been hired by ACORN in June 2008 and terminated three weeks later for failing to satisfy a daily registration “quota.” Docket Nos. 75 & 81 at ¶ 46.

ACORN commenced this official-capacity action against the District Attorney and Attorney General Tom Corbett (“Corbett”) on July 22, 2009, alleging that § 1713, both on its face and “as applied” by the District Attorney, was violative of the First and Fourteenth Amendments to the United States Constitution. Docket No. 1. On October 27, 2009, the Court approved a consent agreement that had been executed by ACORN and the District Attorney. Docket No. 19. Pursuant to the terms of the consent agreement, the District Attorney was voluntarily dismissed from this action pursuant to Federal Rule of Civil Procedure 41(a)(1). Id. at ¶ 5. In exchange for his dismissal, the District Attorney agreed not to prosecute ACORN under § 1713 during the pendency of this case, provided that ACORN continued to compensate its canvassers at an hourly rate rather than on the number of voter-registration applications procured.¹ Id. at ¶ 3. The District Attorney also agreed to be bound by the interpretation of § 1713 established by a final determination in this action. Id. at ¶ 4. The Court retained jurisdiction over the District Attorney only for the purpose of enforcing the terms of the consent agreement. Id. at ¶ 5.

ACORN announced on March 23, 2010, that its offices in Pittsburgh would be closing on or before April 1, 2010. Docket No. 31 at ¶ 8. On April 15, 2010, ACORN sought leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2).² Id. at ¶ 5. The purpose of the proposed amendment was to add Project Vote and Deckard as plaintiffs. Id. Corbett responded two weeks later by filing a brief in opposition to ACORN's motion, contending that ACORN's decision to close its Pittsburgh offices had essentially mooted the preexisting “case” or “controversy.” Docket No. 32 at 6–12. He argued that ACORN no longer had standing under Article III to pursue this action, and that the jurisdictional defect could not be cured by the addition of other plaintiffs. Id.

Shortly after a telephone conference conducted with the parties on May 28, 2010, the Court granted ACORN's motion for leave to amend pursuant to Federal Rule of Civil Procedure 21. Docket No. 37. Rule 21 provides:

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

Fed. R. Civ. P. 21. The Court permitted ACORN to add Project Vote and Deckard as plaintiffs because the United States Supreme Court and the United States Court of Appeals for the Third Circuit had previously recognized that Rule 21 could be used as a mechanism for curing perceived jurisdictional defects. Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 832–837, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Mullaney v. Anderson, 342 U.S. 415, 416–417, 72 S.Ct. 428, 96 L.Ed. 458 (1952); Balgowan v. New Jersey, 115 F.3d 214, 216–218 (3d Cir.1997).

ACORN filed its amended complaint on June 7, 2010, adding Project Vote and Deckard as plaintiffs.³ Docket No. 38 at ¶¶ 5 –10. Corbett filed his answer on June 17, 2010. Docket No. 39. On July 16, 2010, Corbett filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Docket No. 49. Although Corbett conceded that the Plaintiffs had standing to challenge § 1713 on its face, he argued that they could not challenge the statute “as applied” by the District Attorney, who was no longer a party to the case. Docket No. 50 at 3–8. The Court denied the motion in a memorandum opinion and order dated September 28, 2010. ACORN v. Corbett, Civil Action No. 09–951, 2010 WL 3885373, 2010 U.S. Dist. LEXIS 102798 (W.D.Pa. Sept. 28, 2010). The denial was premised on language in Citizens United v. Federal Election Commission, ––– U.S. ––––, ––––, 130 S.Ct. 876, 893, 175 L.Ed.2d 753 (2010), explaining that the distinction between facial and as-applied challenges “goes to the breadth of the remedy employed by the Court” rather than to “what must be pleaded in a complaint.” ACORN, 2010 WL 3885373, at *6–7, 2010 U.S. Dist. LEXIS 102798, at *19–24.

ACORN subsequently filed for bankruptcy and ceased all of its operations. The parties...