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Project Vote and Maryellen Hayden v. Linda L. Kelly

July 27, 2011

PROJECT VOTE AND MARYELLEN HAYDEN, PLAINTIFFS,
v.
LINDA L. KELLY, ATTORNEY GENERAL, COMMONWEALTH OF PENNSYLVANIA, DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

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.*fn1 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).*fn2 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 pre-existing "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.*fn3 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 stipulated to ACORN‟s dismissal from this case on November 4, 2010. Docket Nos. 64 & 65. On January 18, 2011, Corbett was inaugurated as Pennsylvania‟s new Governor. Governor Tom Corbett, http://www.governor.state.pa.us/portal/server.pt/community/governor_corbett/19926 (as visited on June 14, 2011). William H. Ryan, Jr. ("Ryan"), who served as Pennsylvania‟s Acting Attorney General after Corbett‟s inauguration, became the new official-capacity Defendant in this action pursuant to Federal Rule of Civil Procedure 25(d).*fn4 Docket No. 70 at 1, n. 1. Ryan and the Plaintiffs filed cross-motions for summary judgment on April 11, 2011. Docket Nos. 70 & 74. On May 27, 2011, Linda L. Kelly ("Attorney General") became Pennsylvania‟s new Attorney General, thereby making her the new official-capacity Defendant in this case. Pennsylvania Attorney General, http://attorneygeneral.gov/ (as visited on June 14, 2011). The parties were afforded an opportunity to advance their respective positions during the course of a hearing conducted on June 1, 2011. Docket Nos. 85 & 86. The pending motions for summary judgment are the subject of this memorandum opinion.

III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party‟s burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories showing that there is a genuine issue of material fact for trial. Id. at 324. The nonmoving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. Discussion

In this action for injunctive and declaratory relief, the Plaintiffs challenge the constitutional validity of § 1713. Their claims are cognizable under 42 U.S.C. § 1983, which provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."

42 U.S.C. § 1983. This statutory provision "does not create substantive rights," but instead "provides a remedy for the violation of rights conferred by the Constitution or other statutes." Maher v. Gagne, 448 U.S. 122, 129, n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). A plaintiff cannot prevail in an action brought under § 1983 without establishing an underlying violation of a federal constitutional or statutory right. Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)(remarking that § 1983 "does not provide a remedy for abuses that do not violate federal law"). "Section 1983 itself "contains no state-of-mind requirement independent of that necessary to state a violation‟ of the underlying federal right." Board of County Commissioners v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), quoting Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

The first step in the Court‟s analysis is to "identify the exact contours of the underlying right said to have been violated." County of Sacramento v. Lewis, 523 U.S. 833, 841, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. CONST., AMEND. I. The Due Process Clause of the Fourteenth Amendment prohibits a State from "depriv[ing] any person of life, liberty, or property, without due process of law . . . ." U.S. CONST., AMEND. XIV, § 1. The "freedom of speech," which is "secured by the First Amendment against abridgment by the United States," is "among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State." Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

The First Amendment, which is applicable to the States by virtue of the Fourteenth Amendment‟s Due Process Clause, prohibits Pennsylvania from enacting a law which abridges the "freedom of speech." U.S. CONST., AMEND. I. Nothing in the text of § 1713 purports to restrain or limit speech. 25 PA. CONS. STAT. § 1713(a). Nevertheless, the Supreme Court has determined that the Free Speech Clause prohibits a State from significantly burdening potential speakers with financial disincentives to speak. Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 115-118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). Since the availability of compensation often induces individuals to engage in expressive activities, a governmental entity may not unreasonably impede the provision of compensation to individuals who wish to engage in such activities for pay. United States v. National Treasury Employees Union, 513 U.S. 454, 468-477, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). State-imposed disincentives to write or speak are constitutionally suspect not only because they induce individuals to "curtail their expression," but also because they place "a significant burden on the public‟s right to read and hear what the [individuals] would otherwise have written and said." Id. at 469-470.

A. The Constitutional Considerations Underpinning the Plaintiffs' Claims

The Plaintiffs‟ challenge to § 1713 is rooted in Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Meyer involved a constitutional challenge to a Colorado criminal statute prohibiting the payment or receipt of money in exchange for a canvasser‟s act of circulating a petition to place an initiative on the ballot. Meyer, 486 U.S. at 415-416. Under Colorado law, proponents of an initiative were able to have it placed on the ballot for a popular vote if they could secure, within a period of six months, a number of signatures equal to 5% of the total number of individuals who had voted for a candidate for the office of Secretary of State during the preceding general election. Id. at 416. The initiative process was available to those who wished to enact a new law or amend the Colorado Constitution. Id. at 415-416. The challenged statute purported to prohibit the proponents of an initiative from paying canvassers to circulate petitions. Id. Although the statutory provision did not specifically limit or restrain "speech," the Supreme Court determined that it was sufficiently burdensome to potential speakers to warrant a heightened degree of judicial scrutiny. Id. at 425. Speaking through Justice Stevens, a unanimous Supreme Court explained:

The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as "core political speech."

Id. at 421-422 (footnote omitted). Having explained why the challenged statute raised constitutional concerns, the Supreme Court went on to observe:

The refusal to permit appellees to pay petition circulators restricts political expression in two ways: First, it limits the number of voices who will convey appellees‟ message and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.

Id. at 422-423. It was noted that the prohibition had the practical effect of restricting access to "direct one-on-one communication," which was described as "the most effective, fundamental, and perhaps ...


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