American Civil Rights Union v. Philadelphia City Commissioner , 872 F.3d 175 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3811
_____________
AMERICAN CIVIL RIGHTS UNION,
in its individual and corporate capacities,
Appellant
v.
PHILADELPHIA CITY COMMISSIONERS
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-16-cv-01507)
District Judge: The Honorable C. Darnell Jones, II
______________
Argued April 27, 2017
______________
(Opinion Filed: September 25, 2017)
Before: McKEE, VANASKIE, and RENDELL, Circuit
Judges
John C. Eastman [ARGUED]
Center for Constitutional Jurisprudence
One University Drive
Orange, CA 92866
Linda A. Kerns
1420 Locust Street
Suite 200
Philadelphia, PA 19102
Joseph A. Vanderhulst, Esq.
Public Interest Legal Foundation
32 East Washington Street
Suite 1675
Indianapolis, IN 46204
Attorneys for Plaintiff-Appellant
Kelly S. Diffily [ARGUED]
Sozi Pedro Tulante
City of Philadelphia
Law Department
17th Floor
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Benjamin H. Field
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Attorneys for Defendants–Appellees
Ira M. Feinberg
Daryl L. Kleiman
Hogan Lovells US
875 Third Avenue
New York, NY 10022
Sarah C. Marberg
Hogan Lovells
555 Thirteenth Street, N.W.
Columbia Square
Washington, DC 20004
Attorneys for Amicus Appellees Project Vote and Demos
2
___________
OPINION OF THE COURT
____________
McKEE, Circuit Judge.
The American Civil Rights Union (“ACRU”)
challenges the Philadelphia City Commissioners’ failure to
purge the city’s voter rolls of registered voters who are
currently incarcerated due to a felony conviction. Because
state law prohibits felons from voting while they are in
prison, the ACRU argues that the National Voter Registration
Act requires the Commissioners to remove them from the
voter rolls. For the reasons that follow, we will affirm the
District Court’s dismissal of this suit.
I. Background
A. Factual and Procedural Background
The ACRU is a nonprofit organization that states that
it “litigates to enforce clean voter registration rolls” and
“promotes election integrity.” 1 In January of 2016, the ACRU
sent a letter to the Philadelphia City Commissioners, which is
responsible for overseeing elections in Philadelphia. 2 The
letter stated, in part, that “your county is failing to comply
with Section 8 of the National Voter Registration Act
(NVRA)” by not making “a reasonable effort to maintain
voter registration lists free of dead voters, ineligible voters
and voters who have moved away.” 3 The letter also asked the
Commissioners to provide, inter alia, documentation of their
efforts to maintain accurate voter lists and “the number of
1
American Civil Rights Union, Mission Statement,
http://www.theacru.org/mission-statement/ (last visited Aug.
21, 2017).
2
United States v. Shoup, 608 F.2d 950, 954 (3d Cir. 1979).
3
Ohio App. 36.
3
ineligible voters removed for criminal conviction.” 4 The letter
stated that its purpose was to serve as notice that the
Commissioners could be sued under the NVRA.
The following April, the ACRU did sue the City
Commissioners for injunctive relief pursuant to the NVRA.
The suit alleged that the Commissioners failed to provide list
maintenance documentation as required by 52 U.S.C. §
20507(i) and asked to inspect the Commissioners’ records. 5
The Commissioners moved to dismiss. In June, the
Commissioners met with the President of the ACRU and
explained that they do not remove persons incarcerated due to
felony conviction from the rolls or otherwise make note of
registrants that are currently incarcerated due to felony
conviction. They also told the ACRU that the City did not
attempt to coordinate any efforts with law enforcement to
identify such registrants.
Thereafter, the ACRU moved for a preliminary
injunction and leave to amend its complaint. In its motion, the
ACRU claimed “[t]he NVRA requires [the City
Commissioners] to make a ‘reasonable effort to remove the
names of ineligible registrants from the official lists of
eligible voters,’ including voters ineligible by virtue of felony
conviction.” 6 The District Court concluded that the ACRU
had “grossly misrepresented the plain language of the
statute.” 7 Instead of granting the requested relief, the Court
sua sponte issued a Rule to Show Cause as to why the motion
should not be stricken and why the Court should not issue
sanctions. 8 The ACRU responded that though its
characterization of the NVRA was incomplete, the NVRA
must be read together with the requirements of the Help
America Vote Act (“HAVA”), and that when taken together,
the ACRU’s position was consistent with the statutory
4
Ohio App. 28.
5
Am. Civil Rights Union v. Phila. City Comm’rs, No. CV 16-
1507, 2016 WL 4721118, at *1 (E.D. Pa. Sept. 9, 2016).
6
Pl’s Mot. Prelim. Inj., ECF No. 14, at 6 (quoting 52 U.S.C.
§ 20507(a)(4)).
7
Am. Civil Rights Union, 2016 WL 4721118, at *3.
8
Id.
4
scheme. 9 Although the Court did not sanction the ACRU for
misrepresenting the NVRA, it did deny the motion for a
preliminary injunction.
After additional motions were filed, the District Court
granted the Commissioners’ motion to dismiss the Amended
Complaint. In a very detailed and thorough analysis, the
Court held that neither the NVRA nor HAVA requires the
Commissioners to remove felons from the voter rolls while
they are incarcerated. 10 This timely appeal followed.
B. Statutory Background
i. National Voter Registration Act
The National Voter Registration Act has four main
goals: (1) increasing the number of registered voters, (2)
increasing participation in federal elections, (3) maintaining
current and accurate voter rolls, and (4) ensuring the integrity
of the voting process. 11 These goals can sometimes be in
tension with one another: On the one hand, maintaining clean
voter rolls may help ensure election integrity, but on the other
hand, purging voters from the rolls requires voters to re-
register and hinders participation in elections. However, it is
clear from the legislative history that Congress was wary of
the devastating impact purging efforts previously had on the
electorate. Congress noted that not only are purging efforts
often “highly inefficient and costly” to the state by requiring
reprocessing of registrations but also that “there is a long
history of such cleaning mechanisms [being] used to violate
the basic rights of citizens.” 12 The drafters attempted to
balance these concerns with the need for clean voter rolls:
“An important goal of this bill, to open the registration
process, must be balanced with the need to maintain the
9
Pl’s Resp. Order Show Cause, ECF No. 19.
10
Am. Civil Rights Union, 2016 WL 4721118, at *9.
11
52 U.S.C. § 20501.
12
S. Rep. No. 103-6, at 18 (1993). See also H.R. Rep. No.
103-9, at 2 (1993) (noting that “[r]estrictive registration laws
and administrative procedures” such as “selective purges . . .
discourage participation.”)
5
integrity of the election process by updating the voting rolls
on a continual basis.” 13
Accordingly, the NVRA both protects registered voters
from improper removal from the rolls and places limited
requirements on states to remove ineligible voters from the
rolls. The section that squarely addresses these requirements,
Section 8, is the crux of this dispute. 14 That section provides
as follows:
In the administration of voter registration for
elections for Federal office, each State shall . . .
(3) provide that the name of a registrant may
not be removed from the official list of eligible
voters except—
(A) at the request of the registrant;
(B) as provided by State law, by reason
of criminal conviction or mental incapacity;
or
(C) as provided under paragraph (4);
(4) conduct a general program that makes a
reasonable effort to remove the names of
ineligible voters from the official lists of
eligible voters by reason of—
(A) the death of the registrant; or
(B) a change in the residence of the
registrant, in accordance with subsections
(b), (c), and (d) [notice provisions set forth in
Section 8] . . . . 15
In short, once a person is properly registered to vote, a
state is only permitted to remove him or her from the voting
list for narrowly specified reasons. Specifically, Congress
13
S. Rep. No. 103-6, at 18 (1993).
14
In the context of the NVRA, references to “Section 8
violations” refer to violations of 52 U.S.C. § 20507. This
terminology is derived from the section of the public law
originally enacting the statute, Pub. L. No. 103-31, § 8, May
20, 1993, 107 Stat. 77 (1993).
15
52 U.S.C. §§ 20507(a)(3), (a)(4).
6
allows removal if: the person dies, changes residence, asks to
be taken off the list, or becomes ineligible under state law
because of criminal conviction or mental incapacity. The
NVRA also provides a private right of action so that private
parties “aggrieved by a violation of this chapter” may sue to
enforce the statute. 16
ii. Pennsylvania’s Restriction of the Franchise
The extent to which convicted felons are denied the
right to vote varies greatly from state to state, depending on
the law of a given state. In states like Maine and Vermont, for
example, individuals convicted of crimes retain the right to
vote at all times. 17 Individuals convicted of felonies may even
register and vote from prison. 18 At the other end of the
spectrum, states like Florida and Kentucky deprive
individuals convicted of felonies of the right to vote for the
rest of their lives with few exceptions. 19
In Pennsylvania, individuals convicted of felonies are
only barred from voting during the period that they are
incarcerated. Pennsylvania law specifically excludes anyone
who is incarcerated from the definition of “qualified absentee
16
Id. § 20510. Before filing, the aggrieved person must
“provide written notice of the violation to the chief election
official of the State involved.” “If the violation is not
corrected within 90 days after receipt of notice” or “within 20
days after the receipt of the notice if the violation occurred
within 120 days before the date of an election for Federal
office, the aggrieved person may bring a civil action in an
appropriate district court.” Id.
17
Me. Rev. Stat. tit. 21-A, § 112 14; Vt. Stat. Ann. tit. 17 §
2121.
18
Elections Division, Me. Dep’t of State, Maine Voting
Residence Fact Sheet, 2 (2012),
http://www.maine.gov/sos/cec/elec/voter-
info/residencyfacts0812.doc; Vt. Sec’y of State, Voter
Registration Frequently Asked Questions, Elections (Dec. 22,
2013) https://www.sec.state.vt.us/elections/frequently-asked-
questions/voter-registration.aspx.
19
Fla. Const. art. VI, § 4(a); Ky. Const. § 145(1).
7
electors”:
[T]he words ‘qualified absentee elector’ shall in
nowise be construed to include persons
confined in a penal institution or a mental
institution nor shall it in anywise be construed
to include a person not otherwise qualified as a
qualified elector in accordance with the
definition set forth in section 102(t) of this act.20
Nevertheless, individuals registered to vote before being
incarcerated are permitted to vote immediately upon release. 21
And those not previously registered to vote may register in
prison if they will be released by the date of the election. 22
Thus, Pennsylvania law “do[es] not completely
disenfranchise the convicted felon, as is the case in fourteen
of [its] sister states; it merely suspends the franchise for a
defined period.” 23
20
25 Pa. Stat. Ann. § 2602(w) (emphasis added). The
statute’s reference to “persons confined to a penal institution”
has been interpreted by the Pennsylvania Attorney General to
be limited to individuals convicted of felonies. Voting by
Untried Prisoners and Misdemeanants, 67 Pa. D. & C.2d
449, 453 (1974).
21
Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw.
Ct. 2000), aff’d, 783 A.2d 763 (Pa. 2001). Indeed, as was the
case for one of the plaintiffs in Mixon, incarcerated felons that
are furloughed during an election may also vote if previously
registered. Id. at 444–45.
22
See id. at 421 (striking down law requiring previously-
incarcerated felons to wait five years after their conviction to
register to vote). See also Pa. Dep’t of State, Voting Rights of
Convicted Felons, Convicted Misdemeanants and Pretrial
Detainees, 2 (2017) [Hereinafter Voting Rights],
http://www.votespa.com/en-
us/Documents/Convicted_felon_brochure.pdf (identifying
“who can register and vote” as including “[i]ndividuals who
have been released (or will be released by the date of the next
election) from a correctional facility”).
23
Mixon, 759 A.2d at 448 n.11. See also Owens v. Barnes,
711 F.2d 25, 26 (3d Cir. 1983) (“[W]hile Pennsylvania could
choose to disenfranchise all convicted felons, it has not done
so; unincarcerated convicted felons, such as those who have
8
Even though Pennsylvania suspends the franchise
during the period of incarceration, it does not require the
removal of registrants from voter rolls due to incarceration for
a felony conviction. Rather, Section 1909(a) of the
Pennsylvania Voter Registration Act, like the NVRA, directs
that “[a]n elector’s registration shall not be canceled except”
if the voter dies, changes residence, asks to be taken off the
list, or removal is necessary to comply with the NVRA. 24 As
noted above, the NVRA refers only to state law, death,
change in residence, or request of the registrant.
iii. Help America Vote Act
The HAVA was enacted in 2002 to help improve the
equipment used to cast votes, the way registration lists are
maintained, and how polling operations are conducted. 25
Most relevant here, the HAVA builds on the NVRA by
requiring that each state maintains a computerized database
for voter registrations. 26 Similar to the NVRA, the HAVA
requires states to “perform list maintenance” of the
computerized voting rolls. 27 It also attempts to increase voter
participation by limiting the manner in which states may
remove voters from the voting rolls. The HAVA provides that
states may not remove individuals from the voter rolls unless
they do so “in accordance with the provisions of the National
Voter Registration Act.” 28 In addition, should a state seek to
remove a registered voter from the list due to death or
criminal conviction, states must “coordinate the computerized
been sentenced to probation or released on parole, may
vote.”).
24
25 Pa. Cons. Stat. § 1901(a).
25
Daniel P. Tokaji, Early Returns on Election Reform:
Discretion, Disenfranchisement, and the Help America Vote
Act, 73 Geo. Wash. L. Rev. 1206, 1207 (2005).
26
52 U.S.C. § 21083(a)(1)(A).
27
Id. § (a)(2)(A).
28
Id. § (a)(2)(A)(i). As we noted earlier, the Congressional
goals in enacting the NVRA include: increasing the number
of registered voters and increasing participation in federal
elections. 52 U.S.C. § 20501.
9
list with State agency records.” 29 This is the only reference in
the HAVA to removal of voters from the rolls due to criminal
conviction.
Unlike the NVRA, however, the HAVA does not
include a private right of action that allows aggrieved parties
to sue nonconforming states. Subchapter IV of the HAVA
includes only two mechanisms for enforcement: (1) a civil
action brought by the Attorney General, 30 and (2)
administrative complaint. 31
II. Discussion 32
As we noted at the outset, we must determine whether
the NVRA requires the Philadelphia City Commissioners to
purge the voter rolls of individuals who are currently
incarcerated for a felony conviction. The ACRU argues that it
does, relying on Section 8(a)(3) and 8(a)(4) of the NVRA as
read together with the HAVA. Because Pennsylvania does not
permit individuals to vote while incarcerated for a felony, the
ACRU argues, the Commissioners are required to remove
them from the rolls. We disagree.
29
Id. § (a)(2)(A)(ii)(1).
30
Id. § 21111.
31
Id. § 21112.
32
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
When reviewing an order granting a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), our review of the
district court is plenary. See Allen ex rel. Martin v. LaSalle
Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). The Rules of
Civil Procedure demand that a plaintiff present “only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted).
10
Like the District Court, we need look no further than
the text of Section 8 itself to resolve this dispute. “When [a]
statute’s language is plain, the sole function of the courts—at
least where the disposition required by the test is not
absurd—is to enforce it according to its terms.” 33 Here, the
unambiguous text of Section 8 reveals that while states are
required to make reasonable efforts to remove registrants for
certain reasons, states are merely permitted—not required—
to provide for removal of registrants from the official list
based on criminal conviction.
Congress’s only reference to criminal conviction in the
statute is contained in Section 8(a)(3). Section 8(a)(3) states
that “each State shall . . . provide that the name of a registrant
may not be removed from the official list of eligible voters
except” among other reasons, “as provided by State law, by
reason of criminal conviction.” 34 The statute thus places an
obligation on the States to ensure that registrants are not
removed improperly. Thus, Congress limited the authority of
states to encumber voter participation by permitting states to
only remove registrants for the exceptions specified. As set
forth above, under Section 8, states can remove a voter: if the
voter asks to be taken off the list, dies, changes residence, or
becomes ineligible under state law because of criminal
conviction or mental incapacity. 35
This reading is consistent with the NVRA’s central
purpose of “ensur[ing] that, once registered, voters could not
be removed from the registration rolls” for improper
purposes. 36 Thus, given the importance of the right to vote,37
33
United States v. Moreno, 727 F.3d 255, 259 (3d Cir. 2013)
(quoting Lamie v. U.S. Tr., 540 U.S. 526, 534 (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
(1966) (“[T]he right to exercise the franchise in a free and
unimpaired manner is preservative of other basic civil and
political rights . . . .” (quoting Reynolds v. Sims, 377 U.S. 533,
561–62 (1964)).
11
we emphasize that Section 8(a)(3) is designed to protect
voters from improper removal and only provides very limited
circumstances in which states may remove them. Therefore,
contrary to the ACRU’s assertions, the text of Section 8(a)(3)
places no affirmative obligations on states (or voting
commissions) to remove voters from the rolls. As its text
makes clear, NVRA was intended as a shield to protect the
right to vote, not as a sword to pierce it.
The following subsection, 8(a)(4), similarly does not
require states to purge voters convicted of felonies from the
rolls. It does, however, place an affirmative obligation on
states to make “reasonable efforts” to remove registrants in
certain specific circumstances in order to ensure the accuracy
of the voter lists. This limited authority is consistent with the
NVRA’s purpose to “ensure that accurate and current voter
registration rolls are maintained.” 38 Here again, Congress
was careful to very narrowly limit the circumstances that
would justify removing voters in the interest of ensuring the
accuracy of voting lists. Section 8(a)(4) mandates that “each
State shall . . . make[] a reasonable effort to remove the
names of ineligible voters from the official lists of eligible
voters by reason of— (A) the death of the registrant; or (B) a
change in the residence of the registrant.” 39 By its terms, the
mandatory language in Section 8(a)(4) only applies to
registrants who have died or moved away. 40 Removal due to
criminal conviction is not included on this list of mandatory
purging, and we will not amend the statute by reading that
requirement into its text when Congress obviously chose not
to do so. 41
38
52 U.S.C. § 20501(b).
39
Id. § 20507(a)(4).
40
See Orozco-Velasquez v. Att’y Gen., 817 F.3d 78, 83 (3d
Cir. 2016) (“The word ‘shall’ is ordinarily the language of
command.” (quoting Alabama v. Bozeman, 533 U.S. 146, 153
(2001)).
41
See United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir.
1996) (“It is a canon of statutory construction that the
inclusion of certain provisions implies the exclusion of others.
The doctrine of inclusio unius est exclusio alterius ‘informs a
court to exclude from operation those items not included in a
12
Our conclusion is further bolstered by the NVRA’s
legislative history. The Senate Report explains “States are
permitted to remove the names of eligible voters from the
rolls at the request of the voter or as provided by State law by
reason of mental incapacity or criminal conviction.” 42 The
Report continues: “[i]n addition, States are required to
conduct a general program that makes a reasonable effort to
remove the names of ineligible voters from the official lists
by reason of death or a change in residence.” 43 This obvious
distinction between the permissive language in (a)(3) and the
mandatory language in (a)(4) demonstrates that the statute
and the legislative history are in agreement: States and
election officials are permitted—but not required—to remove
individuals ineligible to vote under state law due to criminal
conviction.
The ACRU makes several arguments in an attempt to
rewrite the statute to support its desired outcome. First, the
ACRU cites a case decided by the District Court for the
Western District of Missouri to assert that Section 8(a)(4)’s
affirmative obligation that states “make[] reasonable effort[s]
to remove the names of ineligible voters” in fact “appl[ies] to
the other subsections of Section 20507,” including subsection
8(a)(3). 44 On this basis, the ACRU asserts that the “NVRA
itself contains a requirement that election officials make a
reasonable effort to remove registrants who are ineligible by
operation of state law as a result of criminal conviction.” 45
list of elements that are given effect expressly by the statutory
language.’” (quoting In re TMI, 67 F.3d 1119, 1123 (3d Cir.
1995)).
42
S. Rep. No. 103-6, at 18 (1993) (emphasis added).
43
Id. (emphasis added). See also H.R. Rep. No. 103-9, at 15
(1993) (“Recognizing the essential need to maintain the
integrity of the voter registration lists, the bill requires that
States conduct a general program that makes a reasonable
effort to remove the names of ineligible voters from the
official lists of eligible voters by reason of death or by a
change of residence.”) (emphasis added).
44
Appellant’s Br. 14.
45
Appellant’s Br. 14.
13
This argument not only mangles the statute beyond
recognition, it also misrepresents the non-precedential case it
relies on. There is simply no support for the proposition that
the mandatory list-maintenance provision in subsection
8(a)(4) applies to subsection 8(a)(3). Further, the district court
case the ACRU cites for this proposition—United States v.
Missouri—held no such thing. Rather, the court considered
only the text of Section 8(a)(4) itself—it did not discuss or
mention subsection 8(a)(3) at all—and held that subsection
(a)(4)’s “reasonable effort” requirement applied to the
subsections incorporated by reference within Section 8(a)(4)
itself. 46 The statute serves as its own illustration:
In the administration of voter registration for
elections for Federal office, each State shall . . .
(4) conduct a general program that makes a
reasonable effort to remove the names of
ineligible voters from the official lists of
eligible voters by reason of—
(A) the death of the registrant; or
(B) a change in the residence of the
registrant, in accordance with subsections
(b), (c), and (d) . . . 47
Notably, unlike the subsections Missouri discussed (italicized
above), subsection 8(a)(3) is not incorporated by reference in
(a)(4). Thus, even if the analysis of a district court in Missouri
were persuasive, that court’s analysis would still be irrelevant
to our inquiry here.
46
United States v. Missouri, No. 05-4391-CV-C-NKL (NKL),
2006 WL 1446356, at *8 (W.D. Mo. May 23, 2006), rev’d,
535 F.3d 844 (8th Cir. 2008) (“While the NVRA is
ambiguous, both its text and common sense suggests that
Congress intended the ‘reasonable effort’ standard of §
1973gg-6(a)(4) to apply to subsections (b), (c) and (d).
Subsection (a)(4), which contains the reasonable effort
standard, is a general, introductory provision and incorporates
by reference subsections (b), (c) and (d).”).
47
52 U.S.C. § 20507(a)(4).
14
In its Reply Brief, the ACRU doubles down on this
argument and asserts that because (a)(4) references subsection
8(c) and because subsection 8(c)(2)(B) in turn references
subsection (a)(3), the mandatory language of (a)(4) therefore
applies to (a)(3) via 8(c). 48 This is exactly the kind of
statutory contortion that led the District Court to respond to
the ACRU’s arguments by threatening to impose sanctions
for blatant misrepresentation of the statute. Nothing in this
game of statutory Twister plausibly suggests that the plainly
mandatory language in (a)(4) should be substituted for the
plainly permissive language of (a)(3). 49
The ACRU then turns to another federal statute for
support. It argues that the NVRA is “enhanced by the parallel
obligations found in the Help America Vote Act.” 50 The
ACRU argues that when read together, “list maintenance
regarding ineligible felons is mandatory in states such as
Pennsylvania that have determined that incarceration for a
felony is disqualifying.” 51 The ACRU points to two
provisions of HAVA that purportedly “broaden[]” or
48
Reply Br. 10–11.
49
Indeed, subsection (c)(2)(B)’s reference to (a)(3)
specifically states that the removal of names should be
conducted “on a basis described in paragraph (3)(A) . . . of
subsection (a).” 52 U.S.C. § 20507(c)(2)(B) (emphasis
added). As noted, Section 8(a)(3) is permissive, not
mandatory, and nothing in subsection (c)(2)(B) changes that.
At oral argument, the ACRU relied even more heavily on
Section 8(c)(2)(A), arguing that it mandates states to remove
“ineligible voters” within 90 days of the election and
therefore, incarcerated felons must be removed. E.g. Oral
Arg. at 1:01:37, 1:02:46. See also 52 U.S.C. § 20507(c)(2)(A)
(“A State shall complete, not later than 90 days prior to the
date of a primary or general election for Federal office, any
program the purpose of which is to systematically remove the
names of ineligible voters from the official lists of eligible
voters.”). For the reasons already discussed above and for the
reasons outlined by the District Court, we do not find this
argument persuasive. See Am. Civil Rights Union, 2016 WL
4721118, at *6.
50
Appellant’s Br. 3.
51
Appellant’s Br. 8–9.
15
“augment” the NVRA: (1) Section 21083(a)(4)(A), which
requires election officials to make “a reasonable effort to
remove registrants who are ineligible from the official list of
ineligible voters,” 52 and (2) Section (a)(2)(A)(ii) which
directs that a “State shall coordinate the computerized list
with State agency records on felony status” “[f]or the
purposes of removing names of ineligible voters [under the
NVRA Section 8(a)(3)].” 53
However, even if that interpretation is correct, the
ACRU would still be out of court. Unlike the NVRA, the
HAVA does not include a private right of enforcement. By its
text, the HAVA only allows enforcement via attorney general
suits or administrative complaint. 54 Not surprisingly, the
ACRU cites nothing to support its assumption that it may
graft the NVRA’s private right of action onto a wholly
separate statutory scheme simply because the second statute
refers to the first. To the contrary, the fact that the NVRA
provides for a private right of action while the HAVA does
not clearly indicates Congress’s intent to limit HAVA’s
enforcement mechanism to preclude a private suit. 55
“Obviously, then, when Congress wished to provide a private
damages remedy, it knew how to do so and did so
expressly.” 56 Furthermore, as the District Court noted, circuit
courts do not even agree about whether plaintiffs may bring a
Section 1983 action to enforce the HAVA. 57 Thus, insofar as
52
Appellant’s Br. 11–12 (quoting 52 U.S.C. § 21083(a)(4)).
53
Appellant’s Br. 15 (quoting 52 U.S.C. §
21083(a)(2)(A)(ii)).
54
52 U.S.C. §§ 21111, 21112.
55
See In re Federal-Mogul Glob. Inc., 684 F.3d 355, 373 (3d
Cir. 2012) (“[W]here the legislature has inserted a provision
in only one of two statutes that deal with closely related
subject matter, it is reasonable to infer that the failure to
include that provision in the other statute was deliberate
rather than inadvertent.”).
56
Touche Ross & Co. v. Redington, 442 U.S. 560, 571
(1979).
57
Am. Civil Rights Union, 2016 WL 4721118, at *5
(comparing Colon-Marrero v. Velez, 813 F.3d 1, 13 (1st Cir.
2016) (recognizing there is no private right of action under
16
the HAVA places a burden on state election officials above
and beyond the NVRA, the ACRU is unable to enforce such
requirements in this suit.
Even assuming the ACRU could ground a right to sue
in the HAVA, the statute would still not support the ACRU’s
claims. The unambiguous text of the HAVA simply does not
require election officials to purge voter rolls of incarcerated
felons.
The first section of the HAVA relied on by the ACRU,
Section 21083(a)(4)(A), states that “[t]he State election
system shall include provisions to ensure . . . [a] system of
file maintenance that makes a reasonable effort to remove
registrants who are ineligible to vote from the official list of
eligible voters.” 58 The ACRU argues that this section requires
states to remove all registrants who are unable to cast a ballot
under state law. However, the HAVA also states that “such
system” should be “consistent with the National Voter
Registration Act of 1993.” 59 Moreover, even if that directive
was not clear, Section (2)(A)(i) states that “[i]f an individual
is to be removed from the computerized list, such individual
shall be removed in accordance with the provisions of the
National Voter Registration Act of 1993.” 60 We have already
explained that the NVRA does not require election officials to
purge registrants from the rolls who are not permitted to vote
due to felony conviction. And by its text, the HAVA requires
no more. 61
the HAVA, but permitting a Section 1983 suit); Sandusky
Cty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th
Cir. 2004) (same); with Crowley v. Nevada ex rel. Nevada
Sec’y of State, 678 F.3d 730, 735 (9th Cir. 2012) (recognizing
there is no private right of action under the HAVA, and
foreclosing a Section 1983 suit)).
58
52 U.S.C. § 21083(a)(4)(A).
59
Id.
60
Id. § 21083(2)(A)(i).
61
In its opinion, the District Court went a step further and
concluded that individuals incarcerated due to criminal
conviction are not “ineligible voters” under the HAVA
because “Pennsylvania law ‘merely suspends the franchise for
17
The ACRU also argues that the District Court’s
interpretation is inconsistent with provisions of the HAVA
and the NVRA that set forth reporting and information-
sharing requirements designed to assist states in removing
registrants convicted of felonies. Specifically, the ACRU
points to: (1) 52 U.S.C. § 20507(g)(1), which requires U.S.
attorneys to send written notice of felony convictions for list
maintenance purposes; (2) 52 U.S.C. § 20507(g)(5), which
requires state election officials to give this information to
local voter registration officials; and (3) 52 U.S.C. §
21083(a)(2)(A)(ii), which requires states to coordinate with
law enforcement agencies regarding felony status. The ACRU
argues that “the only plausible reason for requiring this
information to be sent to local election officials is so that they
can make note of the registrants who are ineligible by reason
of criminal status,” 62 and therefore, the Commissioners are
required to purge or make note of those individuals. 63
As the District Court so aptly reasoned, a requirement
that information be shared does not impose a duty on election
officials to subsequently act on that information by purging
those individuals from the voter rolls in disregard of the law
a defined period.’” Am. Civil Rights Union, 2016 WL
4721118 at *9 (quoting Mixon, 759 A.2d at 448 n.11). We
agree. Moreover, under the definition of “qualified absentee
voter,” ineligibility depends upon “confinement,” and, under
state law, individuals convicted of felonies are permitted to
vote if they are on furlough from prison or are serving a
period of home confinement. Oral Arg. at 1:22; Voting Rights
at 2. Thus, they remain eligible to vote but are not provided
access to the ballot while incarcerated.
62
Appellant’s Br. 16.
63
The ACRU argues that if the NVRA does not require the
Commissioners to purge voters that are incarcerated for a
felony conviction, it must at the very least require that those
voters be “flagged” or “notated” to indicate that they are not
currently able to vote. Appellant’s Br. 18–19. The ACRU
cites no authority for the proposition and we can find none.
We thus decline to read a notation requirement into the statute
where Congress has not written it.
18
of their state. 64 In addition, contrary to the ACRU’s
assertions, we do not think the District Court’s reading makes
these provisions superfluous or redundant. The information-
sharing provisions are no doubt very helpful in states such as
Florida and Kentucky where individuals convicted of felonies
are permanently deprived of the right to vote. By contrast, the
information would have no utility in Maine and Vermont
where citizens may vote regardless of criminal status.
Congress simply required the sharing of certain information
so that states would have the information necessary to
maintain voter lists pursuant to state law. As the District
Court observed, “[i]nformation sharing in itself is important,
and ensures that all states will have the information necessary
regarding federal convictions, whether that information is
acted upon or not.” 65 These information-sharing provisions
certainly do not dictate that Maine or Vermont must act to
remove felons from the voter rolls contrary to state law, and
they do not so dictate here.
Finally, the ACRU argues that the District Court was
wrong to “look at particular subsections [of the statutes] one
by one rather than as a whole” to reach its conclusion. 66
Certainly context matters, and a statute must be considered as
a whole. 67 Yet here, neither statute says what the ACRU
claims—neither the NVRA nor the HAVA come close to
requiring the Commissioners to purge the voter rolls of
individuals incarcerated due to felony conviction.
Moreover, requiring the Commissioners to purge the
rolls of incarcerated felons would contravene one of the main
goals the NVRA itself. Congress has declared that the statute
is designed to “enhance[] the participation of eligible citizens
64
Am. Civil Rights Union, 2016 WL 4721118, at *8.
65
Id.
66
Appellant’s Br. 10.
67
King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (“[W]e must
do our best, bearing in mind the fundamental canon of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.”) (internal quotation marks omitted).
19
as voters in elections for Federal office.” 68 In Pennsylvania,
individuals convicted of a felony are citizens who can vote
the moment they are released from prison, regardless of
probation or parole status. 69 If an individual is purged from
the rolls while incarcerated, he or she will be required to re-
register after release. Voter registrations take time to process,
and the state further imposes a 30-day cutoff before an
election, after which new registrants are ineligible to vote in
an upcoming election. 70 However, under Pennsylvania law, a
previously-registered individual released the morning of
November 8, 2016 would be eligible to vote in the election
that day. The ACRU’s position would preclude that eligible
voter from casting a vote, a result that would clearly
contravene Congress’s announced intention of protecting
access to the polls and increasing voter turnout. 71
Accordingly, we hold that the very thorough and
thoughtful opinion of the District Court is clearly correct and
entirely in keeping with the “whole law” and the “object and
policy” of the NVRA. 72 It is the ACRU’s interpretation of the
68
52 U.S.C. § 20501(b)(2).
69
See Mixon, 759 A.2d at 451; Owens, 711 F.2d at 26.
70
25 Pa. Stat. and Cons. Stat. Ann. § 1326.
71
We also note that during purging efforts, election officials
often inadvertently remove voters not convicted of felonies
which even more dramatically disenfranchises eligible voters.
As Amici Curiae Project Vote and Demos outline in their
brief, officials that have undertaken purges in the past have
removed hundreds—if not thousands—of registrants who
have not been convicted of felonies due to improper matching
procedures. Amici Curiae Br. 17–23 (citing Myrna Pérez,
Brennan Center for Justice, Voter Purges (2008),
http://www.brennancenter.org/sites/default/files/legacy/public
ations/Voter.Purges.f.pdf). As a result, registrants such as
those with similar names as convicted felons or registrants
only convicted of misdemeanors are improperly purged from
the rolls, and most do not find out until they are denied a
ballot on Election Day. See Pérez, supra at 2–3.
72
See Appellant’s Br. 11 (quoting Prestol Espinal v. Att’y
Gen., 653 F.3d 213, 217 (3d Cir. 2011)).
20
NVRA, not the Commissioners’, that most threatens the goals
of the statute and the integrity of the vote.
III. Conclusion
In summary, because the ACRU is unable to present a
plausible claim that the NVRA requires the Commissioners to
purge Philadelphia’s voter rolls of individuals incarcerated
due to felony conviction, we affirm the District Court’s
dismissal of the ACRU’s suit.
21