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May 10, 1971

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

The opinion of the court was delivered by: LUONGO


LUONGO, District Judge.

Plaintiffs (some of whom seek nomination of the Democratic Party for various municipal offices in Philadelphia, others are electors of the City of Philadelphia) seek to enjoin defendants, the Philadelphia City Commissioners for Voter Registration and Elections (Commissioners), from enforcing certain provisions of "The First Class City Permanent Registration Act," 25 P.S. § 623-1 et seq. (Permanent Registration Act) on the ground that those provisions of the Permanent Registration Act are unconstitutional on their face, or as applied. At plaintiffs' request a three-judge court was convened pursuant to the provisions of 28 U.S.C. § 2281. A hearing was held on May 6, 1971, on certain of the issues raised by plaintiffs' motion for a preliminary injunction.


 Initially it must be determined whether this matter is properly one for a three-judge court. Under § 2281 a three-judge court is required and authorized only where an injunction is sought on the grounds of unconstitutionality against enforcement or execution by state officers of a state statute of statewide application. 28 U.S.C. § 2281. *fn1"

 Attacked here as unconstitutional on its face are those portions of the Permanent Registration Act which (a) provide for notice to persons who have failed to vote at any general or primary election for two consecutive years that their registration will be cancelled unless written request for reinstatement is made (25 P.S. § 623-40) *fn2" and (b) establish a 50-day cut off for registration prior to general and primary elections (25 P.S. § 623-17). *fn3"

 The Permanent Registration Act is applicable to all cities in Pennsylvania with a population large enough to qualify as first-class cities. Consequently the statute is one of statewide application notwithstanding that Philadelphia is the only city which currently fits that classification. Moreover, although the Commissioners are local officers, since the upcoming election includes statewide (seats on the Supreme Court of Pennsylvania) as well as local, offices, the defendants are performing state functions in determining the eligibility of persons to vote in a state election. See Kauffman v. Osser, 321 F. Supp. 327 (E.D. Pa. 1971); Gilhool v. Chairman and Commissioners, Philadelphia County Board of Elections et al., 306 F. Supp. 1202 (E.D. Pa. 1969), aff'd, 397 U.S. 147, 90 S. Ct. 996, 25 L. Ed. 2d 182 (1970). See generally Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967).

 At least with respect to the "two-year non-vote purge" (§ 623-40) and the 50-day registration cut off (§ 623-17), this action clearly seeks injunctive relief against state officers to restrain the enforcement and execution of a statute of statewide applicability on the grounds of unconstitutionality, and the matter is therefore properly one for a three-judge court.

 Plaintiffs have also attacked as unconstitutional certain other provisions of the Permanent Registration Act as applied by the defendants, charging that the practices and methods utilized by the defendants in carrying out other statutory means for removing persons from the registration rolls, i.e., inspectors canvass (§ 623-33), mail canvass (§ 623-32), strike-off petitions (§ 623-35), and official reports (§ 623-31), have violated their constitutional rights. Complaints such as these can properly be heard by a single judge although a three-judge court, properly convened, may entertain such claims as ancillary to the three-judge issues. See Swift & Co. v. Wickham, 230 F. Supp. 398 (S.D.N.Y. 1964), appeal dismissed, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). Public Service Comm'n of Missouri v. Brashear Freight Lines, Inc., 312 U.S. 621, 61 S. Ct. 784, 85 L. Ed. 1083 (1941). This three-judge court, in the exercise of its discretion, determined not to consider those matters which could properly be determined by a single judge court, and so informed counsel at the outset of the hearing. The May 6 hearing was restricted, therefore, to issues raised by the "two-year non-vote purge" and the 50-day registration cut off provisions. Counsel for plaintiffs, recognizing that the date of the hearing (May 6) was too close to primary election day (May 18) to allow meaningful preliminary injunctive relief with respect to the 50-day registration cut off, advised the court that they would present no evidence on that phase of their complaint at the hearing on the motion for preliminary injunction, but they expressly reserved that question for final hearing. The hearing on the motion for preliminary injunction was, therefore, confined to the "two-year non-vote purge."


 Under the Permanent Registration Act a person who registers *fn4" to vote is permanently enrolled so long as he does not change his place of residence and so long as he does not fail to vote for a period of two consecutive years. 25 P.S. §§ 623-20, 623-40. In the case of a person who fails to vote for two consecutive years, § 623-40 provides that the Commissioners must send a notice by mail to the voter's listed address, informing him that his registration will be cancelled unless he files with the Registration Commission a written request for reinstatement within 10 days. If written request is not made within that time, the Act requires that a second notice be sent to the voter informing him that his registration has been cancelled.

 Plaintiffs contend that § 623-40 violates their Fourteenth Amendment due process rights in that it places upon the right to vote a restriction which is not justified by any compelling state interest. They contend further that the section violates the equal protection clause of the Fourteenth Amendment by singling out for separate treatment those who do not vote for regularly and such separate treatment unfairly discriminates against Negroes because the deterrent effect of the restriction on voting falls more heavily on them than on other segments of the population.

 Defendants assert that the two-year non-vote purge provision serves a legitimate and compelling state interest in that it protects the electoral process against election fraud by providing a safeguard against "phantom" voters. The substance of defendants' position seems to be that a person who has not voted for two years and who fails to respond to the notices to apply for reinstatement is either no longer a resident or no longer desires to remain on the voting rolls.

 In January 1971, pursuant to the provisions of § 623-40, the Commissioners mailed first notices to 92,000 registered voters who had 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. The remaining 79,000 who had not, as of the date of hearing, responded to either of the notices have been removed from the voting rolls and are presently ineligible to vote in the primary election scheduled for May 18. It has been and is the practice of the Commissioners, however, to grant requests for reinstatement up to election day for any person removed for non-voting provided he still meets the residency requirements and submits some writing bearing his signature. In addition, there is provision for reinstatement of a voter on election day at his polling place. *fn5"

 In their motion for preliminary injunction plaintiffs seek blanket reinstatement of all the remaining 79,000 voters removed by the two-year non-vote purge procedure, and they ask that we require defendants to mail to each of the 79,000 a card advising him that he is eligible to vote.

 One of the difficulties with plaintiffs' position is that they have presented no evidence from which the Court is able to make even a rough approximation as to the percentage of the 79,000 persons so stricken who may be otherwise (apart from the contested removal procedure) eligible to vote. One witness, Mrs. Wylie, a former committeewoman, testified that she was personally aware of instances where persons had been removed for non-voting but still resided at the same address as the one from which they were registered to vote, or at another address within the same voting division. Mrs. Wylie testified that some of those persons were illiterate, or virtually so, and did not understand what the notices meant. In their memorandum of law in support of the motion for preliminary injunction, counsel for plaintiffs have suggested that the number "improperly" stricken "may well number over 10,000 and close to 50,000" (p. 3 Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction), but the figures represent pure speculation since nothing in the evidence suggests any such conclusion. While it appears fairly certain that some of the persons stricken for non-voting still meet the citizenship, age and residency requirements, we cannot hazard a guess whether the number is substantial.

 Plaintiffs also contend that there is no reasonable relationship between non-voting and eligibility to vote; that other procedures authorized by statute (e.g., inspectors canvass, mail canvass, public records relating to death, reports of discontinuance of service by utility companies, reports from real estate agents, landlords and moving companies that persons had moved) make unnecessary the use of non-voting as a basis for removal; and that removal from the voting rolls for non-voting is an overly broad device to prevent vote fraud and is unduly restrictive of the right to vote.

 It appears from the evidence presented at the hearing that the non-vote purge is an important and effective tool for keeping the voting lists current. Many of the devices authorized by statute (e.g., reports from utility companies, real estate agents and landlords) are so unreliable that they have been virtually abandoned by defendants as a means for ascertaining if voters have changed their residences. The other procedures (inspectors canvass, mail canvass, etc.), while effective, cannot be relied on for a thorough job of weeding out ineligibles.

 The evidence discloses that Pennsylvania adopted permanent registration in 1937 by legislation which contained a four-year non-vote purge provision. In the early 1940's a citizens' committee (Committee of Seventy) instituted litigation aimed at eliminating widespread vote frauds caused by the presence on the voting rolls of large numbers of phantom voters. This litigation led to adoption in 1945 of the legislation presently under attack, which reduced the non-vote purge period to two years. Plaintiffs did produce testimony of Dr. Stanley Kelley, Jr., Professor of Political Science at Princeton University that, from a study of 104 cities of over 100,000 population, he found there was no necessary relationship between non-voting and being otherwise eligible to vote, but at this stage of the proceedings we cannot say that plaintiffs have established that there is no reasonable relationship between non-voting and vote frauds, which is a matter of legitimate concern to defendants and to the general electorate. Plaintiffs complain that the two-year non-vote purge has an especially heavy impact on municipal elections. They point to the fact that in the municipal election years 1967 and 1971 the number of two-year non-vote notices was significantly higher than in the intervening years. The figures for the years 1967-1971, stated in round numbers, are: 1967 1968 1969 1970 1971 First notices 94,000 35,000 31,000 33,000 92,000 Second notices 80,000 31,000 29,000 31,000 81,000


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