Williams v. Osser

• Decision Date: 20 October 1972
• Docket Number: Civ. A. No. 71-979.
• Citation: 350 F. Supp. 646
• Parties: Hardy WILLIAMS et al., Plaintiffs, v. Maurice OSSER et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

350 F. Supp. 646

Hardy WILLIAMS et al., Plaintiffs, v. Maurice OSSER et al., Defendants.

Civ. A. No. 71-979.

United States District Court, E. D. Pennsylvania.

October 19, 1972.

Dissenting Opinion October 20, 1972.

Robert J. Sugarman, Philadelphia, Pa., for plaintiffs.

Harry Wolov, Asst. City Sol., Philadelphia, Pa., for defendants.

Before MAX ROSENN, Circuit Judge, and LUONGO and GORBEY, District Judges.

OPINION

MAX ROSENN, Circuit Judge.

Plaintiffs have instituted a civil rights class action challenging certain statutes and administrative practices relating to voting. Jurisdiction for this three-judge court is asserted under 28 U.S.C. §§ 1343(3) and (4), and 42 U.S.C. § 1971(d).

Under attack before us on final hearing on the merits is the constitutionality of a section of Pennsylvania's "First Class City Permanent Registration Act," 25 P.S. § 623-1 et seq., which provides for removal from the voter registration lists of persons who have not voted at any election or primary during the two immediately preceding calendar years and who, after notice, have failed to request reinstatement of registration, 25 P.S. § 623-40¹ (referred to hereinafter as the two-year purge). A request for preliminary injunction against the operation of that section was earlier denied by this court in an opinion by Judge Luongo.² Williams v. Osser, 326 F. Supp. 1139 (E.D. Pa. 1971).

Plaintiffs' complaint is that the two-year purge statute places an unconstitutional burden upon the fundamental right to vote. They contend that the section violates the equal protection clause by singling out for separate treatment those who have not voted for two consecutive calendar years.³

Named plaintiffs are five candidates who ran in the May 18, 1971, Philadelphia Democratic primary, the Black Political Forum, and four other residents of Philadelphia. One of the plaintiffs was stricken from the registration list by the two-year purge. Each plaintiff sues on his own behalf and on behalf of others similarly situated. Defendants are the three Philadelphia city commissioners and the deputy commissioner in charge of registration.

At the hearing on plaintiffs' motion for preliminary injunction, we found the following facts:

In January 1971, pursuant to the provisions of § 623-40, the Commissioners mailed first notices to 92,000 registered voters who have failed to vote for two consecutive years. Approximately 11,000 persons responded within the prescribed time and were reinstated. Thereafter, notices of cancellation (second notices) were mailed to the 81,000 persons who had failed to respond to the first notice. As required by § 623-40, the Commissioners furnished to representatives of the political parties a list of all persons to whom cancellation notices had been sent. Each of the parties has procedures for verifying the accuracy of the purge list and for seeking reinstatement of those voters who want to remain on the rolls. Some 2,000 of those to whom cancellation notices were mailed requested, and were granted, reinstatement.

Williams v. Osser, 326 F.Supp. at 1142.

At final hearing, plaintiffs introduced a survey of the persons stricken⁴ under the two-year purge in Philadelphia. By a method stipulated to be statistically valid, a random sample consisting of 491 persons stricken was obtained. It was ascertained that 287 (58.5%) had not moved from their registered residence, 179 (36.5%) had moved, and 16 (3.3%) had died. No contact was made or information obtained concerning 9 (1.7%). Of the 287 persons who had not moved, 98 (34.1%) had either re-registered or been reinstated to the voter registration list by other procedures. There remained, then, 189 (38.5%) of the sample who had been removed from the voting rolls for failure to vote or to signify their desire to be reinstated, although they qualified in all other respects (age, residency, and citizenship) with the voting eligibility requirements.

A projection of the information obtained from the sample indicates that 31,706 bona fide residents of requisite age and citizenship have been stricken from the voter registration lists solely because of failure to vote in elections or primaries during the preceding two calendar years and failure, after notice, to signify their desire to be reinstated.

From the survey, plaintiffs ascertained that 195 voters had either moved or died. Information as to the ineligibility of 51 of those voters had been obtained by the Registration Commission by means other than the two-year purge, such as inspector canvases, death notices, committeeman investigations, and re-registrations at new addresses. Therefore, the two-year purge identified 144 persons (29.4%) who had moved, died, or were otherwise not eligible to vote, and who would not have been identified by other means. Projection from the sample, therefore, indicates that through the two-year purge the Commission identified 24,211 such persons.

Plaintiffs also presented testimony of James A. Green, State Commissioner of Elections, who expressed the opinion, based on his experience, that the two-year purge is an unnecessary burden on the right to vote, and that a longer nonvoting period before purging would be a more effective means of preventing voter fraud. Professor Stanley Kelley expressed the opinion, on the basis of a study made by him of voting and registration practices in 104 American cities, including Philadelphia, that any registration requirement deters voting. The two-year purge, in his opinion, was a significant deterrent "as compared to the less restrictive requirements."

The defense offered the testimony of Jack Welsh, Voting Registration Supervisor for 20 of his 32 years of employment with the Philadelphia Registration Commission, that the two-year purge was "very necessary" to keep the voting rolls pure and free of "phantom voters" and to minimize voter fraud. He said that Philadelphia had gone through a period of vote fraud, but because of the "two-year non-vote purge plus all the other means of strike-off, our rolls are clean."

The procedures by which the statute is implemented were explained by defendants. All registered voters who have not voted in two years are sent a notice that their registration will be cancelled unless they request reinstatement in writing within ten days.⁵ No sooner than ten days after the notice date, registration affidavits are removed from the voting books and second notices sent.⁶ When the affidavits are removed, they are placed in a special file, so that the voter can be restored, if he requests, at any time up to election day. Edward G. Mekel, Deputy Commissioner in charge of the registration division, said that voters are restored upon returning the notice with their signatures affixed, or even upon telephone request.

The plaintiffs contend that the two-year purge is a significant deterrent to voting and, therefore, unconstitutional unless justified by a compelling state interest. They argue that there is no compelling state interest because there are other less burdensome techniques available to accomplish the purposes of the non-voting purge.

The defendants answer that the two-year purge serves a legitimate state interest because it protects the electoral process against election fraud by providing a safeguard against "phantom" voters. They argue that the burden upon the non-voter who wishes to remain upon the registration rolls is minimal.

The threshold question is what standard to apply in determining the constitutionality of this statutory requirement.

In deciding whether state action classifies unconstitutionally, the Supreme Court has articulated two essentially distinct tests. The traditional test requires that the statute be upheld if any "reasonable basis" exists for the classification and the basis is reasonably and rationally related to the achievement of a legitimate state interest. On the other hand, if the classification affects a "fundamental" right or effectuates a "suspect" grouping, it will be "carefully and meticulously scrutinized" by the Court in search for a compelling state interest.⁷ Because of the overriding importance of voting rights, the Supreme Court has stated that "classifications which might invade or restrain them must be closely scrutinized and carefully confined." Harper v. Virginia State Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966). In Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), however, Chief Justice Burger was careful to point out that: "Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review."

We do not believe that the two-year purge provision should be subjected to the more stringent review standard. In McDonald v. Board of Election, 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), the Supreme Court did not apply that standard of review in a case involving the supply of absentee ballots to prisoners awaiting trial. In so doing, it announced two guidelines for determining whether the more stringent test was applicable. First, it said the test was not applicable because discrimination on the basis of race or wealth was not involved in the classification system. Here, it was originally alleged, that there was racial discrimination because of the two-year purge, but no such discrimination was ever proven. Second, the Court said in McDonald that the more stringent review standard was not to be applied since it found nothing in the record to indicate that the appellants were absolutely barred from voting. See Goosby v. Osser, 452 F.2d 39 (3d Cir. 1971). A voter may not under the two-year purge provision be stricken from the registration rolls until ten days after the Registration Commission has mailed to him at his registration address a written notice of his failure to vote and that his registration will be cancelled unless he requests reinstatement....