Welker v. Clarke

Decision Date09 September 2000
Docket NumberNo. 00-1161,00-1161
CourtU.S. Court of Appeals — Third Circuit

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Judge: Hon. Ronald L. Buckwalter (D.C. Civil No. 99-CV-03552)

Bruce S. Marks, Esq. (Argued) Egorov, Puginsky, Afanasiev & Marks, Philadelphia, PA, Counsel for Appellants

Nelson A. Diaz, Esq., Blank, Rome, Comisky & McCauley, Philadelphia, PA, Counsel for Appellee, Philadelphia Housing Authority.

Gregory M. Harvey, Esq. (Argued), Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Counsel for Appellee, Darrell L. Clarke.

John S. Summers, Esq., John P. Lavelle, Jr., Esq. (Argued), Hangley, Aronchick, Segal & Pudlin, Philadelphia, PA, Howard Lebofsky, Esq., Philadelphia, PA, Counsel for Appellee Philadelphia County Board of Elections.

BEFORE: BARRY, COWEN and WOOD,** Circuit Judges


COWEN, Circuit Judge.


On May 18, 1999, appellant Julie Welker ran against appellee Darrell Clarke in the Democratic primary for the Fifth Council District seat on the Philadelphia City Council. According to the official election results, Welker received 140 fewer votes than Clarke. Immediately following the election, Welker began an investigation of the area where Clarke had received the majority of his votes.1 Welker maintains this investigation revealed a pattern of fraud and illegality, including votes cast by persons who did not meet Pennsylvania's residency requirements. More specifically, Welker alleged that, contrary to state law, officials of the County Board of Elections permitted persons who had moved to vote in the election districts where they had formerly resided. During discovery Welker produced lists of approximately 300 persons who cast votes, but whose listed addresses were for abandoned homes and empty lots.2 She also identified persons who voted, but who had moved from the residence listed in the voter registration rolls many years prior. In two instances, those persons no longer resided in the city or county in which they voted. She argues that the intentional or reckless failure of the County Board and Division officials to comply with state residency requirements destroyed the integrity of the voter registration rolls and amounted to stuffing the ballot box in violation of the Civil Rights Act, 42 U.S.C. S 1983, the Voting Rights Act, 42 U.S.C. S 1971, and the Fourteenth Amendment. The validity of these causes of action is based on the specific allegation in Welker's complaint that election officials conspired with the Clark campaign to violate election laws in order to dilute the votes of Welker's supporters. In the absence of such an allegation, it is not clear that claims made by Welker would support intervention by a federal court in this election.3 During the course of the proceedings in the court below, Welker moved for a preliminary injunction and declaratory judgment that voters could not vote in state and municipal elections if they were registered as residing at addresses from which they had moved pursuant to 25 P .S. S 961.901(B)(2). The district court denied these motions concluding that Pennsylvania law did not preclude such persons from voting. As a result of this ruling Welker concluded that she could not meet her burden of showing sufficient illegal votes to overturn the election. Therefore, she moved for an adverse order dismissing the case in order to appeal this determinative ruling. Appellees, Clarke and the Philadelphia County Board of Elections, cross-moved for summary judgment. The district court granted the motion for summary judgment and Welker now appeals that order. Because we agree with the district court that Pennsylvania law does not preclude persons who are registered at addresses from which they have moved from voting, we will affirm the district court's grant of summary judgment in favor of the appellees.


Welker's underlying claim alleges that the failure of election officials to enforce Pennsylvania's voter eligibility requirements amounted to ballot-stuffing and voter dilution in violation of the Civil Rights Act, 42 U.S.C.S 1983, the Voting Rights Act, 42 U.S.C. S 1971, and the Fourteenth Amendment. We exercise subject matter jurisdiction pursuant to 28 U.S.C. S 1331 and 28 U.S.C.S 1343.

Welker's attempt to prove that illegal votes were cast in the May 18, 1999, Philadelphia City Council election turns on the interpretation of S 901(B)(2) and S 501(A) of the Pennsylvania Voter Registration Act (PVRA). Section 901(B)(2) provides:

An elector who removes residence from one place to another within the same county and who has not yet filed a removal notice with the commission shall be permitted to vote at the election next following removal if, at the time of signing [the] voters certificate, the elector files with the judge of elections a signed removal notice properly filled out.

Section 501(A) provides in relevant part,"[i]f an individual is qualified to vote in an election district prior to removal of residence, the individual may, if a resident of this Commonwealth, vote in the election district from which residence was removed within the 30 days preceding the election." Welker urges that the proper construction of these two sections of the PVRA is that, if a person has moved more than 30 days prior to a state or municipal election, that person may not legally vote in the election district where s/he formerly resided unless (a) the new residence is in the same county; (b) the election in which the voter seeks to vote is the first election since the move; and (c) the voter files a "removal notice" with the judge of election upon showing up to vote. The purported rationale of this provision is to serve the compelling state interest of preventing fraud and dilution of the votes of persons actually residing in the election district. Under this interpretation, each of the 300 voters identified by Welker were ineligible to vote.

At first glance this interpretation has some appeal. However, a closer inspection reveals that Welker's urged construction conflicts with other, controlling provisions of the PVRA and runs contrary to the Pennsylvania legislature's intent to create a single, unified electorate for both state and federal elections. Pennsylvania adopted the PVRA in 1995, in response to the passage of the National Voter Registration Act (NVRA) in 1993. One of the NVRA's central purposes was to dramatically expand opportunities for voter registration and to ensure that, once registered, voters could not be removed from the registration rolls by a failure to vote or because they had changed addresses. 42 U.S.C.A. S 1973gg(b). To achieve this purpose, the NVRA strictly limited removal of voters based on change of address and instead required that, for federal elections, states maintain accurate registration rolls by using reliable information from government agencies such as the Postal Service's change of address records. 42 U.S.C.A. S 1973 gg-6(b)(1). The NVRA went even further by also requiring the implementation of "fail-safe" voting procedures to ensure voters would not be removed from registration rolls due to clerical errors or the voter's own failure to re-register at a new address. 42 U.S.C.A. S 1973 gg-6(b)(1); See also H.R. Rep. No. 103-9, at 18 (1993), reprinted in 1993 U.S.C.C.A.N. 105. Of course, these procedures were mandated only with respect to federal elections. 42 U.S.C.A. S 1973gg(b). States remained free to maintain a different voter registration system for state and local elections, even though doing so would create two different electorates.

Because it quickly became apparent that maintaining two sets of registration rolls would impose massive administrative and economic burdens, most states elected to adopt the NVRA registration procedures for their state and local elections as well as federal elections, thereby producing a single, unified registration system and electorate. Pennsylvania is no exception. In early 1995, Pennsylvania was sued in federal court for its failure to comply with the NVRA. See Association of Community Organizations for Reform Now (ACORN) v. Ridge, et al., Civ. A. No. 95-382 (E.D. Pa.). The court entered an Order holding that several aspects of Pennsylvania election law conflicted with and were therefore pre-empted by the NVRA with respect to federal elections. ACORN v. Ridge, 1995 WL 136913 (E.D. Pa. Mar. 30, 1995). The ACORN court specifically referenced the parts of Pennsylvania law that required the filing of removal notices for continued eligibility to vote as contravening the fail-safe provisions of the NVRA. ACORN v. Ridge, Order (E.D. Pa. May 4, 1995).

In response to the enactment of the NVRA and the ACORN decision, Pennsylvania enacted significant changes to its voting laws. When enacting the new election law, the PVRA, the legislature had two goals in mind - to adopt a single, unified registration system, fully compliant with the NVRA for both federal and local elections, while also maintaining as much of Pennsylvania's pre-NVRA registration system as possible. The provisions upon which Welker relies are provisions that were carried over from Pennsylvania's pre-NVRA registration system. 25 P.S. SS 961.501, 961.901. Compare 25 P.S. SS 623-21 (repealed), 623-28 (repealed), 951-19 (repealed), 951-26 (repealed). Recognizing that many of the carry-over provisions were potentially inconsistent with the NVRA, the legislature also adopted a parallel set of procedures intended to comply the NVRA. Those procedures, set out in Chapter 19 of the PVRA, were...

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  • Gonzalez v. State Of Ariz., 08-17094
    • United States
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    • October 26, 2010
    ...is to increase voter registration by streamlining voter registration procedures. See, e.g., Harkless, 545 F.3d at 449; Welker v. Clarke, 239 F.3d 596, 598-99 (3d Cir.2001) (“One of the NVRA's central purposes was to dramatically expand opportunities for voter registration ....”); Disabled i......
  • Democratic Nat'l Comm. v. Republican Nat'l Comm.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 8, 2012
    ...voters could not be removed from the registration rolls by a failure to vote or because they had changed addresses.” Welker v. Clarke, 239 F.3d 596, 598–99 (3d Cir.2001) (citing 42 U.S.C. § 1973gg(b)).17 The NVRA authorizes election officials to use mailings to update voter registration rol......
  • In re Vodvarka
    • United States
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    • March 30, 2016
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    • U.S. Court of Appeals — Third Circuit
    • September 25, 2017
    ...124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (alteration omitted)).34 52 U.S.C. § 20507(a)(3) (emphasis added).35 Id.36 Welker v. Clarke, 239 F.3d 596, 598–99 (3d Cir. 2001).37 See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) ("[T]he right to exer......
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1 books & journal articles
  • Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks
    • United States
    • Emory University School of Law Emory Law Journal No. 67-3, 2018
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    ...Vote Under State Constitutions, 67 Vand. L. Rev. 89, 101-05 (2014).319. Morley, supra note 22, at 190-91.320. See, e.g., Welker v. Clarke, 239 F.3d 596, 597 n.3 (3d Cir. 2001) (exercising jurisdiction over plaintiff's claim that election officials intentionally conspired to allow non-reside......

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