Welker v. Clarke

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

2-8-2001

Welker v. Clarke

Precedential or Non-Precedential:

Docket 00-1161

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"Welker v. Clarke" (2001). 2001 Decisions. Paper 23.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/23

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed February 8, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1161

JULIE WELKER; WELKER `99;

EVA K. COHEN; SYLVESTER GRIFFIN;

ALAN BURGESS

v.

DARRELL L. CLARKE; JOHN DOES; JANE DOES, 1-20;

PHILADELPHIA COUNTY BOARD OF ELECTIONS;

JOHN ROES; JANE ROES, 1 - 20

Julie Welker; Welker `99,

Appellants

*Amended per Clerk's Order filed 9/5/00

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 99-cv-03552)

District Judge: Hon. Ronald L. Buckwalter

Argued December 5, 2000

BEFORE: BARRY, COWEN and WOOD,**

Circuit Judges

(Filed: February 8, 2001)

_________________________________________________________________

** Honorable Harlington Wood, Jr., United States Circuit Judge, U.S.

Court of Appeals for the Seventh Circuit, sitting by designation.

Bruce S. Marks, Esq. (Argued)

Egorov, Puginsky, Afanasiev &

Marks

1835 Market Street, 28th Floor

Philadelphia, PA 19103

Counsel for Appellants

Nelson A. Diaz, Esq.

Blank, Rome, Comisky & McCauley

One Logan Square

Philadelphia, PA 19103

Counsel for Appellee

Philadelphia Housing Authority

Gregory M. Harvey, Esq. (Argued)

Montgomery, McCracken, Walker &

Rhoads

123 South Broad Street

Philadelphia, PA 19109

Counsel for Appellee

Darrell L. Clarke

John S. Summers, Esq.

John P. Lavelle, Jr., Esq. (Ar gued)

Hangley, Aronchick, Segal & Pudlin

One Logan Square, 27th Floor

Philadelphia, PA 19103

Howard Lebofsky, Esq.

City of Philadelphia Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Counsel for Appellee

Philadelphia County Board of

Elections

2

OPINION OF THE COURT

COWEN, Circuit Judge.

I.

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 patter n 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 wher e they had

formerly resided. During discovery W elker produced lists of

approximately 300 persons who cast votes, but whose listed

addresses were for abandoned homes and empty lots.2 She

_________________________________________________________________

1. Welker and several supporters initiallyfiled an election contest in the

Court of Common Pleas for Philadelphia County claiming that numerous

signatures in the poll books (indicating who had voted) were forged. The

state court provided an accelerated schedule of discovery and Welker

eventually identified over one thousand supposedly suspect signatures.

On the date both sides were to provide the reports of their handwriting

experts Welker moved to withdraw her petition without prejudice, a

motion that was subsequently granted. In this federal action Welker has

not pointed to a single allegedly forged signature.

2. The Board of Elections presented evidence to the District Court that at

least 54 of the challenged voters did, in fact, r eside in their voting

districts. For example, some of the voters' addr esses were misprinted in

the registration records and others had resided at their registered

addresses at the time of the primary, but had since moved. The Board

also presented evidence that three of the challenged voters had not voted

in the election. There were no findings of fact made by the District Court

regarding these competing claims and we ar e thus unable to determine

how many votes might have been cast by voters who did not then live in

the voting districts in which they were r egistered.

3

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 W elker'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

_________________________________________________________________

3. This was a purely municipal election, with no federal candidates on

the ballot. There are no contentions that election officials treated the

supporters of the two candidates differ ently. Further, Welker has not

argued that the supposed violations of the election laws could not have

been remedied in a state court action. If W elker's claims were only that

officials negligently maladministered the election by not properly

enforcing the Pennsylvania residency r equirements as interpreted by

Welker, we would hesitate to intervene. Under similar circumstances,

other circuits have determined that such disputes do not state a

constitutional violation and therefore do not rise to the level

appropriate

to support federal court interference in a local election. See Gold v.

Feinberg, 101 F.3d 796, 800 (2d Cir. 1996) (refusing to interfere in a

state election where one-third of voting machines arrived late, some

ballots were defective, and an ineligible candidate was on the ballot);

Curry v. Baker, 802 F.2d 1302, 1314-15 (11th Cir. 1986) (Court found no

equal protection violation in the absence of evidence that

maladministration of local election was the r esult of an intent to

discriminate against voters or to subvert their right to choose their

representative); Hennings v. Grafton , 523 F.2d 861, 864 (7th Cir. 1975)

(finding no constitutional violation where irregularities were caused by

mechanical or human error and were not due to invidious or fraudulent

intent); Pettengill v. Putnam County R-1 School District, 472 F.2d 121,

122 (8th Cir. 1973) (no constitutional basis for intervening in a local

election absent aggravating factors such as evidence of race

discrimination, fraudulent interference with election results, or other

unlawful conduct interfering with an individual's right to vote).

4

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.

II.

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) andS 501(A) of the

Pennsylvania Voter Registration Act (PVRA). Section

901(B)(2) provides:

An elector who removes residence fr om 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.

5

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 fr om which

residence was removed within the 30 days preceding the

election." Welker urges that the pr oper 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, contr olling 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 r egistration 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 r olls by using reliable

information from government agencies such as the Postal

Service's change of address records. 42 U.S.C.A. S 1973gg-

6(b)(1). The NVRA went even further by also r equiring the

implementation of "fail-safe" voting pr ocedures to ensure

voters would not be removed from r egistration rolls due to

clerical errors or the voter's own failur e to re-register at a

new address. 42 U.S.C.A. S 1973gg-6(b)(1); See also H.R.

6

Rep. No. 103-9, at 18 (1993), reprinted in 1993

U.S.C.C.A.N. 105. Of course, these procedur es 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 differ ent 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 procedur es 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 therefor e 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 pr ovisions 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 pr ovisions 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

7

PVRA, were adopted to permit Chapter 19 to supersede the

carry-over provisions if the Secretary of the Commonwealth

determined that the carry-over provisions were inconsistent

with the mandates of the NVRA. 25 P.S. S 961.5103. Within

weeks of the passage of the PVRA, the Secretary suspended

SS 906-912 in deference to Chapter 19. Pennsylvania

Bulletin Vol. 25, No. 28 (July 15, 1995).

Chapter 19 of the PVRA establishes procedur es virtually

identical to those of the NVRA for the removal of voters

from Pennsylvania registration rolls for state and local

elections. Section 1901 strictly limits the manner and

circumstances under which a voter's registration may be

canceled. 25 P.S. S 961.1901. Section 1901(a) provides:

An elector's registration shall not be canceled except as

follows:

(1) At the request of the elector.

(2) Upon the death of the elector under section 905.

(3) Upon confirmation that the elector has moved to a

residence outside the county.

(4) Under a voter removal program as pr ovided for

under subsection (b).

Subsection (b) specifies the required and permissible voter

removal programs, which requir e the updating of

registration records based on either information supplied

by the Postal Service or obtained by a commission through

countywide confirmation mailings and per mitting the use of

district-wide canvasses and confirmation notices mailed to

voters who have not voted within five years. 25 P .S.

S 961.1901(b). Further, S 1901(d) narrowly restricts the

ability of a commission to cancel the registration of a voter

if there is any possibility the voter has changed residence.

Under the terms of Chapter 19, none of the 300 voters

challenged by Welker voted illegally.

There is a clear conflict between appellants'

interpretation of SS 961.501 and 961.901 and Chapter 19.

The Pennsylvania legislature and the Secr etary of the

Commonwealth have made it exceedingly clear that when

such conflicts arise, the provisions of Chapter 19 must

8

control. To hold otherwise would be to cr eate a system

whereby some voters are eligible to vote only in state and

local elections, but other voters are eligible to vote in all

elections. This is exactly the kind of dual r egistration

system the Pennsylvania legislature sought to avoid by

enacting the PVRA.

Appellants argue that such an interpretation is contrary

to established rules of statutory construction that hold that

"when construing a statute, it is the function of the court

to give effect to all of its provisions." In re Canvassing of

Certain Voting Machines, 475 A.2d at 1325, 1327 (1984).

This argument ignores the clear dir ection of the

Pennsylvania Supreme Court that:

The language of a statute must be read in a sense

which harmonizes with the subject matter and its

general purpose and object. The general design and

purpose of the law is to be kept in view and the statute

given a fair and reasonable construction with a view to

effecting its purpose and object, even if it be necessary,

in doing so, to restrict somewhat the for ce of

subsidiary provisions that otherwise would conflict

with the paramount intent.

Swartley v. Harris, 40 A.2d 409, 411 (Pa. 1944). The

overriding purpose of the Legislature in enacting the PVRA

was to comply with the NVRA in such a way as to cr eate a

single unified system of voter registration in the state. If

S 901(B)(2) were interpreted in the manner proposed by

Welker, that paramount intent would clearly be defeated.

Thus, the District Court properly deter mined that Welker's

interpretation of the statute could not be given effect. In

affirming the District Court, we are not holding that

S 901(B)(2) is completely null and void. Rather, we are

merely holding that this provision cannot have the meaning

urged by Welker. We will leave it to the state courts of

Pennsylvania, deciding future election contr oversies, to

determine what, if any, permissible meaning might be given

to S 901(B)(2).4

_________________________________________________________________

4. For example, in the present case the District Court noted that

S 901(B)(2) can be interpreted as simply outlining one of several ways to

9

Finally, appellants argue that there is no conflict because

they are not suggesting that the contested voters should be

removed from the registration r olls. Instead, they argue

these voters are simply ineligible to vote. W e decline to

adopt this semantic distinction. If voters ar e declared

"ineligible" even though they are r egistered to vote, the

effect is the same -- they are excluded from voting in state

and local elections, while remaining "eligible" to vote in

federal elections thereby contravening the expr ess purpose

of the PVRA to create a unified electorate. If state election

officials were required to implement S 901(B)(2) in the

manner suggested by Welker, it would be necessary for the

voter registration lists to indicate whether voters were

eligible to vote in all elections or only in federal elections.

This would impose the precise burden that the

Pennsylvania Legislature sought to avoid when it enacted

the PVRA.

Appellants' interpretation of SS 501(A) and 901(B)(2)

creates a direct conflict with Chapter 19 of the PVRA. The

legislature was clear that when carry-over pr ovisions like

901(B)(2) and 501(A) conflict with Chapter 19, Chapter 19

is controlling. In light of our construction of the statute,

Welker herself acknowledges that she cannot meet the

burden of proving the existence of "illegal" votes, a

necessary element of her federal claims.

III.

For the foregoing reason, the District Court's judgment of

January 31, 2000 will be affirmed.

_________________________________________________________________

register to vote, thus completely avoiding a conflict between it and

Chapter 19. Welker v. Clarke, Memorandum (E.D. Pa. Oct. 26, 1999).

There may be other possible interpretations that could be applied

consistent with the overall purpose of the PVRA. The meaning of

S 901(B)(2) is not relevant to the dispute before us, however, and it is

not

our intent to fix that meaning in this opinion.

10

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

11